EFFECTIVE DATE: 01/01/2018
MARKING/LABELING: Each crate, pallet, packaging (box, bags, cartons, etc.) must be marked with 1) the TMC Purchase Order Number, 2) the applicable TMC Purchase Order Line Number and 3) the TMC Part Number (if applicable). Please ensure that all markings do not void any return policies.
Purchase Order Terms and Conditions
The following terms and conditions provide Thoma-Sea Marine Constructors, LLC and subsidiary companies suppliers with the guidelines and legal stipulations of our purchase order contract and are the Terms and Conditions for all Thoma- Sea purchase orders. This Purchase Order (“Order”) is Thoma-Sea Marine Constructors, LLC’s (“Purchaser”) offer to purchase from Seller the products and/or services which are described on the face of the Order.
Any Order issued by any Thoma-Sea company shall include and be subject to the following conditions:
- Acceptance: Any Order is revocable, in whole or in part, by Purchaser, any time prior to acceptance. This Order supersedes all previous written or verbal representations and agreements between the parties with respect to the subject matter hereof and becomes a binding agreement, subject to the Seller’s acceptance by acknowledgement or commencement of work. This includes any additional specifications or documents incorporated therein by reference on the face of the Order or as an addendum to the order. This Order contains the entire agreements of the parties and expressly limits acceptance to the terms and conditions stated. Any terms and conditions proposed by the Seller inconsistent with or in addition to the terms and conditions hereof are objected to and void unless agreed to in writing by the Purchaser.
- Delivery/Default: Time is of the essence of this Order. Production schedules are dependent on the agreement of the deliveries of products covered by any Order will occur on the required delivery date(s) listed on the face of the Order. Seller shall be responsible for all damages of any kind incurred or suffered by Purchaser which were the result of any delay of Seller making deliveries of acceptable products. Seller agrees to notify Purchaser immediately, in writing if at any time it appears that Seller may not meet the delivery schedule. The notification shall include the reasons for delay, actual or potential, the steps being taken to remedy the constraint, and the revision in the original delivery schedule proposed by the Seller. Any assistance furnished by Purchaser to overcome delays shall not be regarded as waiving Purchaser’s remedies for default, including termination rights, if Seller fails to meet contractual schedule. Unauthorized advance deliveries and deliveries other than for the quantity ordered are returnable at the Seller’s expense. Furthermore, Seller shall not ship partial or incomplete orders without Purchaser’s advance written approval. Such unauthorized partial or incomplete orders may, at Purchaser’s sole discretion, be returned to Seller at Seller’s expense. Identification of the products under Section 2-501 of the Uniform Commercial Code shall occur at the moment Seller accepts the applicable Order. Seller shall not be excused from performing his obligation thereunder if the products identified are destroyed. Delivery will not be deemed complete until the products have been actually received by the Purchaser at its facility. The risk of loss and damage in transit shall be upon Seller and shall not pass to Purchaser until received at Purchaser’s facility in a condition in accordance with the items of any Order. The packing, shipping and all other costs of return shipments shall be borne by Seller.
- Packing and Shipping: Seller shall ship only as specified herein, or as subsequently directed in writing, and in strict conformity with the governing tariff rules and regulations. Seller shall pack or otherwise prepare all goods to meet carrier requirements and safeguard against damage from weather and transportation. No separate charges shall be allowed for packing or cartage unless specifically noted herein. Unless otherwise agreed upon in writing by Purchaser, products must be shipped prepaid at Seller’s expense. Each package shall be marked to denote Order number, Purchaser’s part number and include a packing sheet in each package with an Order Number included. Each package shall also be clearly marked with its content’s, expiration date, special handling and storage instructions, requirements, and the schedule of any periodic inspection requirements. It is the Seller’s responsibility to meet the delivery schedule set forth in this Order.
- Inspection: All products shall be received subject to final inspection and approval by Purchaser after delivery at destination. Defective products may be returned for credit or replacement at Seller’s expense. In addition to any other defects for which Purchaser may reject goods upon final inspection after delivery, Purchaser shall have the right to reject as defective any and all products which weigh in excess of the weight of such products as Purchaser has specified or as may be contained in Seller’s standard catalog or other data furnished to Purchaser therefor. Purchaser’s inspection, or its lack of inspection, shall not affect any express or implied warranties. Seller shall make available to Thoma-sea representatives copies of drawings, specifications, and other technical data applicable for the products ordered. In the case of the Purchaser receiving items for Subcontractor of services, Purchaser will only inspect the external packaging for damage. Quantity and condition of contents will not be confirmed. The Subcontractor has the responsibility for the quality and condition of material until final acceptance by Purchaser.
- Additional Inspection Requirements Notification: In the event the products require periodic inspection, periodic maintenance, special handling or storage conditions, or are subject to expiration or limited shelf life, then Seller shall, by separate written notification, advise Purchaser of such requirements. In the absence of such separately written notification, the risk of loss of use or damage to the products shall remain with Seller, and if the products are damaged or substantially unusable, or have expired when Purchaser places such products into service, then the products shall be considered “defective” and returnable by Purchaser to Seller, at Seller’s sole expense for a full refund of the cost paid by Purchaser to Seller therefor, together with any damages sustained by Purchaser as the result of the failure of the products.
- Warranties: All warranties of Seller, whether created expressly by law or in fact, are incorporated in any Order by reference and shall include and are supplemented by the following express warranties: The products shall comply with any and all specifications, drawing samples, or other descriptions furnished by Purchaser: the products shall be merchantable of good material and workmanship, free from defect, and suitable for their intended purpose; Seller agrees to repair or replace, at Seller’s sole expense, (which Seller’s expense shall include, but not be limited to , the expense of delivery and redelivery of the products to Seller’s repair facility, insurance, packaging/packing and handling, and as to products which cannot reasonably be shipped, Seller’s expenses relating to transportation, lodging, and associated expenses of Seller’s repair personnel to the site of the products to be repaired, and all labor and material costs required to effect repair), any products found to be defective as to material or workmanship, for a period of one (1) year from the date of delivery by Purchaser of Purchaser’s product in which Purchaser has placed or incorporated Seller’s products purchased under any Order; and, the repair(s) of products which have been repaired under this warranty shall be themselves warranted from defects in material and workmanship for an additional one (1) year from the date that the repairs are accepted by Purchaser, and any additional repairs to the products required by a failure of previous repair(s) shall likewise be effected at Seller’s sole expense; the products shall have a shelf life of not less than eighty-five (85%) percent of their usable life, as measured from the date of the products’ manufacture to their expiration date, provided that in any event, the expiration date of the products shall be not less than one (1) year form Purchaser’s receipt thereof; and except in the case of products for which Purchaser furnished detailed manufacturing drawings, the manufacture and sale by Seller of the products, the use of the products by Purchaser, or disclosures by Seller to Purchaser in any manner shall not infringe upon or violate the legal or equitable rights of any person, corporation, or partnership arising out of any license or franchise, or out of any patent, trademark, copyright, or other proprietary right now or hereinafter in effect. All obligations of Seller under any Order shall survive acceptance of payment by Purchaser and shall include liability for any loss, consequential and incidental damages, and expenses resulting from the breach of any warranty or resulting from any other act or omission by Seller, it agents or employees, while in the performance thereof.
- Technical Data: Seller, if required as part of its performance under any Order, shall supply any and all printed materials such as catalogs, drawing cuts, certified prints, characteristic curves, certificates, part lists, service and technical manuals, and diagrams relating to such products on or before the date specified by Purchaser. If delivery of the foregoing printed material occurs after the date specified by Purchaser, Seller shall be liable for any loss, consequential and accidental damages, and expenses resulting from such delay. The failure of Seller to deliver the foregoing printed materials supplied by or specifically prepared at the request of Purchaser shall at all times, be and remain the property of Purchaser and shall be delivered to Purchaser on demand. All drawings, data, design and other technical information furnished by Purchaser shall remain the property of Purchaser and shall be held in confidence by Seller.
- Disclosure of Information: No information or knowledge, disclosed to Purchaser in the performance of or in connection with any Order shall be deemed to be confidential or proprietary unless otherwise expressly agreed to in writing by Purchaser, and any such information or knowledge shall be free from any restrictions, other than patents, copyrights, and/or registered trademarks as part of the consideration for any Order. Likewise, Seller shall not, without prior written consent of Purchaser, in any manner, advertise, publish or disclose the existence of any Order or any details connected therewith, or in the content of any information or knowledge transmitted by Purchaser thereunder, to any third party.
- Changes: Purchaser may at any time, by written direction and without notice to any sureties or assignees, make changes in the drawings, specifications, delivery schedules, method of shipment or packaging. Should any such changes increase or reduce the cost of or the time required for performance of any Order, an equitable adjustment will be made in the contract price or delivery schedule provided, however, any requests for an increase in the contract price or an extension in delivery schedule must be made within fifteen (15) working days from the date of such written direction. FAILURE TO AGREE UPON AN EQUITABLE ADJUSTMENT SHALL NOT RELIEVE THE SELLER FROM PROCEEDING WITHOUT ANY DELAY IN PERFORMANCE UNDER THIS ORDER AS CHANGED. Where any property is made obsolete or excess as a result of any change for which Seller makes a claim, Purchaser shall have the right to proscribe the manner of disposition of such property.
- Indemnification: Seller shall indemnify and hold Purchaser harmless against all liabilities, losses, damages and expenses, including reasonable attorney’s fees, for personal injuries, death or property damage incident to, arising out of , resulting from the activities of Seller, its employees and agents, of its subcontractors and their agents and employees, or in connection with the work to be performed, services to be rendered, or materials to be furnished, under any Order, except in those instances where such liability, losses, damages or expenses are caused solely and directly by Purchaser’s negligence. Seller shall indemnify and hold Purchaser harmless from and against any claim, demand, action, proceeding, or expenses, including reasonable attorney’s fees, brought or instituted against Purchaser by a third party in connection with any alleged loss or damage resulting from, arising out of or in connection with any alleged patent infringement, copyright infringement, trade secret violation, or other asserted right to or in any products purchased by Purchaser from Seller under this Order.
- Payments/Invoices/Audit: Unless otherwise provided in any Order, no invoice shall be issued and no payment will be made prior to physical delivery of products, or completion of services. Individual invoices stating the Order number, description of products as shown therein, number of cartons shipped, and carrier and weight, shall be issued for each shipment applying hereto. Each individual invoice must be plainly marked “Original”. Invoices based on a percentage of completion or cost of the products or services must be rounded to no more than a two digit percentage in order to be properly applied to the original order. Shipping charges and all applicable taxes, or charges for which Purchaser has agreed to pay, and has not furnished an exemption certificate, shall be itemized separately on Seller’s invoices. Unless such charges are itemized, Purchaser may take the applicable discount on the full amount of each invoice. Seller agrees that its books and records, or such parts thereof as may relate to the performance under any Order, shall at all reasonable times be subject to inspection and audit by a duly authorized representative of Purchaser. Payments shall be made upon the submission of proper invoices for products delivered and accepted. With respect to any discount offered, time shall be computed from the date of delivery or from the date correct invoice is received by Purchaser, whichever last occurs. Payment is deemed to be made, for the purpose of earning the discount on the date Purchaser’s check is mailed; Seller warrants that the price charged for the products is no higher than that charged other purchasers for commodities of like grade and quality.
- Bailment: Unless otherwise provided, all property furnished to Seller by Purchaser shall remain the property of Purchaser. Seller shall bear the risk of all loss and damage thereto while such property is in Seller’s actual or constructive possession. Such property shall at all times be properly protected and maintained by Seller, shall not be commingled with the property of Seller or others, shall not be moved from Seller’s premises without prior written authority from Purchaser, and shall upon request by Purchaser immediately be returned to Purchaser. Further, such property shall be identified and marked by Seller as Purchaser’s property and shall be used only as expressly authorized by Purchaser. Such property shall be adequately insured by Seller for any and all losses while in Seller’s possession, and shall be returned to Buyer in the same condition when received, reasonable wear and tear expected.
- Non-Waiver: The failure of Purchaser in any one or more instance to enforce any of its rights or to insist upon performance of any of the terms or conditions of an Order shall not be construed as waiving any of the terms and conditions of said Order or any of Purchaser’s rights or remedies. The remedies reserved in or created by any Order shall be cumulative and additional to any other or future remedies provide at law or equity.
- Hazardous Materials and Safety Data: Seller agrees to supply to Buyer, as a component part of the products ordered under any Order, all Material Safety Data Sheets, in a format and with sufficient content to meet all OSHA requirements, which pertain to all portions and components of the products delivered thereunder. Within fifteen (15) days of the placement of the order represented by any Order, Seller agrees to furnish to Purchaser a description of any and all hazardous materials and volatile organic compounds which will form any portion of the goods to be furnished under the Order. For the purposes of any Order, “hazardous materials” means any explosives, radioactive materials, hazardous wastes, or hazardous substances, including without limitation asbestos-containing materials, PCBs, CFCs, or substances defined as “hazardous substances” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9657; the Hazardous Materials Transportation Act of 1975, 49 U.S.C. §§ 1801-1812; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6987; or any other federal, state or local statue, law, ordinance, code, rule, regulation, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning hazardous materials, waste, or substances now or at any time hereafter in effect.
- Headings: The Headings used herein are for reference purposes only and shall not affect the meaning or interpretation of any Order.
- Severability: Any provisions of any Order prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions thereof.
- Compliance: Seller shall comply with all statutes, legal directives and regulations in its performance under any Order. In the event that the goods do not conform with any legal requirement in addition to the requirements of any Order and Purchaser is penalized for such nonconformance. Seller shall indemnify Purchaser for all penalties, costs and expenses, including interest levied against Purchaser.
- Termination: Purchaser shall have the right at any time and for any reason to terminate any Order in its entirety or in part for its convenience, and not as a breach. Further, Purchaser may terminate any Order for default if Seller fails to make any delivery in accordance with the schedule set forth therein, or for failure to comply with any of the other requirements of terms and conditions for any Order of for failure to make progress under any Order so as to endanger performance of any Order, and does not cure such failure within a period of ten (10) days after notice from Purchaser. In the event of termination for Seller’s default, Purchaser may procure elsewhere such supplies or services, which are similar to those terminated, and on such terms as Purchaser may deem appropriate, and Seller shall be liable for excess re-procurement costs. Seller shall also be liable to Purchaser for any other damages or remedies prescribed by law or equity.
- Gratuities: Any Order may be terminated immediately if Purchaser determines that Seller or any of its employees or representatives offered or gave a gratuity to any employee of Purchaser, and intended by that gratuity to obtain an order or favorable treatment under an order from the Purchaser.
- Conflict: In the event a Master Service Contract is effective between the parties at the time any Order is issued, and a conflict of inconsistency exists between the terms and conditions of the Master Service Contract and the Order, the terms and conditions of the Master Service Contract shall prevail.
- Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veteran’s Readjustment Assistance Act: To the extent not exempt, this contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.