Purchase Order Terms & Conditions
Commercial Item under US Government Contract
1) ACCEPTANCE
This Purchase Order is for Maritime Applied Physics Corporation dba BlackSea Technologies (“MAPC”) offer to purchase the goods and/or services described on the Purchase Order. MAPC’s placement of the order is expressly conditioned on Seller’s acceptance of all the terms and conditions contained in or attached to this Purchase Order (“Terms”). Seller hereby accepts these terms upon acceptance of the Purchase Order, or delivering or invoicing under the Purchase Order. Any terms and/or conditions of Seller which are in any way in conflict with, inconsistent with, different, or in addition to these Terms shall not be binding on MAPC unless expressly agreed to in writing by MAPC.
2) CONSIDERATION
The price on the Purchase Order include sales, excise, and any other applicable taxes. Seller shall pay all taxes that may arise out of its sale of the goods and/or services to MAPC.
3) INVOICING AND PAYMENT
Seller shall invoice for the price stated in the Purchase Order, upon delivery of all goods and/or services described in the Purchase Order, or as otherwise stated in the Purchase Order. All invoices shall be submitted via email to accountspayable@mapcorp.com. MAPC shall pay Seller the amount of each invoice within forty-five (45) days after its receipt of the applicable payment from its customer. Payment shall be made in U.S. Dollars in accordance with the remittance instructions included on the invoice or otherwise furnished by Seller in subcontract agreement. Please refer to MAPC Project and P.O. #'s on all invoices.
4) CHANGES
MAPC may at any time, by written notice, and without notice to sureties or assignees, make changes within the general scope of this Purchase Order in any one or more of the following: (i) drawings, designs, or specifications; (ii) method of shipping or packing; (iii) place of inspection, acceptance, or point of delivery; and (iv) delivery schedule. If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of this Purchase Order, MAPC shall make an equitable adjustment in the Purchase Order price and/or delivery schedule, and modify this Purchase Order accordingly. Seller must assert its right to an equitable adjustment under this clause within ten (10) days from the date of receipt of the written change order from MAPC. Failure to agree to any adjustment shall be resolved in accordance with these Terms. However, nothing contained in this "Changes" clause shall excuse Seller from proceeding without delay in the performance of this Purchase Order as changed.
5) INTELLECTUAL PROPERTY
Each party retains all rights in and to its pre-existing intellectual property and no rights or licenses are granted herein unless stated in the Purchase Order.
6) INDEPENDENT CONTRACTOR
This Purchase Order does not make either party the employee, franchisee, agent, or legal representative of the other party. Nothing herein shall be construed to create any employment, partnership, joint venture or agency relationship of any kind between the parties. Neither party is granted any right or authority to enter into any agreements or contracts on behalf of the other party, or to bind the other party in any way. Each party shall be acting as an independent contractor in fulfilling its obligations under this Purchase Order. Seller shall be responsible for maintaining all necessary insurance coverage including, without limitation, automotive, workers’ compensation, general liability, and professional liability coverage.
7) REPRESENTATIONS AND WARRANTIES
(a) Seller warrants that: (a) all services will be provided in a workmanlike, competent, and professional manner in accordance with the highest standards and best practices of Seller’s industry; (b) all goods delivered hereunder are merchantable and fit for use for the particular purpose of this Purchase Order; (c) the execution, delivery and performance of the goods and/or services under this Purchase Order do not violate any laws or regulations by which Seller is bound including the Foreign Corrupt Practices Act, and all U.S. export control laws and economic sanctions laws and regulations and do not and will not materially conflict with or constitute a breach under any other agreement, judgment, or instrument to which Seller is a party or by which it is bound; and (e) goods and/or services provided do not infringe on any patent, copyright, trade secret, or other proprietary rights of any third party.
(b) Seller represents that neither Seller nor any parent, subsidiary, affiliate or sublicensee or sub-tier supplier of Seller is included on any of the restricted party lists maintained by the U.S. Government including the Specially Designated Nationals List administered by the U.S. Treasury Department’s Office of Foreign Assets Control ("OFAC"), Denied Parties List, Unverified List or Entity List maintained by the U.S. Commerce Department’s Bureau of Industry and Security ("BIS"), or the List of Statutorily Debarred Parties maintained by the U.S. State Department’s Directorate of Defense Trade Controls, listed, the ITAR §126.1 Restricted Parties List, or the consolidated list of asset freeze targets designated by the United Nations, European Union, and United Kingdom (collectively, "Restricted Party Lists"). Seller will provide prompt notice to MAPC, in adherence with applicable laws, the confidentiality restriction of the change of control agreement from the acquiring party of a change of control of Seller, or any parent, subsidiary or affiliate of Seller, or any sublicensee or sub-tier supplier of Seller, which becomes listed or their ownership is listed on any Restricted Party List, within or by an ITAR § 126.1 listed country, or if Seller’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. or non-U.S. government entity or agency. To ensure compliance with the requirements of the applicable agency’s regulations, if the intended sale or transfer of ownership is to a non-U.S. person or entity, Seller shall provide MAPC with notice at least 90 days prior to the effectiveness of such change of control.
8) INSPECTION/ACCEPTANCE
Seller shall only deliver goods and/or services that conform to the requirements of this Purchase Order. MAPC and its customer reserve the right to inspect or test any goods and/or services that have been tendered for acceptance. MAPC may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in Purchase Order price. If repair/replacement or reperformance will not correct the defects or is not possible, MAPC may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies
or services. MAPC must exercise its post-acceptance rights —
(a) Within a reasonable time after the defect was discovered or should have been discovered; and
(b) Before any substantial change occurs in the condition of the goods, unless the change is due to the defect in the goods.
9) TERMINATION
(a) MAPC, by written notice, may terminate this Purchase Order for default, in whole or in part, if Seller (i) fails to comply with any of the terms of this Purchase Order; (ii) fails to make progress so as to endanger performance of this Purchase Order; (iii) fails to provide adequate assurance of future performance; (iv) files or has filed against it a petition in bankruptcy; or (v) becomes insolvent or suffers a material adverse change in financial condition. Seller shall have ten (10) days (or such longer period as MAPC may authorize in writing) to cure any such failure after receipt of notice from MAPC. Default involving delivery schedule delays, bankruptcy or adverse change in financial condition shall not be subject to the cure provision. Following a termination for default of this Purchase Order, Seller shall be compensated only for goods and/or services actually delivered and accepted. Seller shall continue all work not terminated or cancelled.
(b) MAPC reserves the right to terminate this Purchase Order, or any part hereof, for its convenience. MAPC shall terminate by delivering to Seller a Notice of Termination specifying the extent of termination and the effective date. In the event of such termination, Seller shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this Purchase Order, Seller shall be paid a percentage of the Purchase Order price reflecting the percentage of the goods and/or services delivered prior to the notice of termination, plus reasonable charges Seller can demonstrate to the satisfaction of MAPC using its standard record keeping system have resulted from the termination. Seller shall not be paid for any work performed or costs incurred which reasonably could have been avoided. In no event shall MAPC be liable for lost or anticipated profits, or unabsorbed indirect costs or overhead, or for any sum in excess of the total Purchase Order price. Seller’s termination claim shall be submitted within thirty (30) days from the effective date of the termination. Seller shall continue all work not terminated or canceled.
10) INDEMNIFICATION
Seller shall indemnify and hold MAPC harmless from and against any and all losses, liabilities, expenses (including, but not limited to, attorneys’ fees), damages, claims, suits, demands, judgments, and causes of action of any nature arising as a result of or in connection with a breach of any of Seller’s obligations, representations, or warranties hereunder or from any other act or omission of Seller, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under this Purchase Order.
11) RETENTION OF RECORDS
Unless a longer period is specified in this Purchase Order or by law or regulation, Seller shall retain all records related to this Purchase Order for three (3) years from the date of final payment received by Seller. Records related to this Purchase Order include, but are not limited to, financial, proposal, procurement, specifications, production, inspection, test, quality, shipping and export, and certification records. At no additional cost, Seller shall timely provide access to such records to the US Government and/or MAPC upon request.
12) ASSIGNMENT
Seller shall not assign, subcontract, or delegate the performance this Purchase Order or any part of this Purchase Order without the express written consent of MAPC. Rights which accrue to MAPC shall be assignable to its successor or assignees.
13) MISCELLANEOUS
(a) If any provision or portion thereof of these Terms or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of these Terms will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.
(b) All disputes under this Purchase Order that are not disposed of by mutual agreement may be decided by recourse to an action at law or in equity. This Purchase Order and any action related thereto will be governed by the laws of the State of Virginia without regard to or application of its conflict of law provisions, except that any provision in this Purchase Order that is incorporated in full text or by reference from the Federal Acquisition Regulation (FAR) or any agency regulation that implements or supplements the FAR, or that is substantially based on any such agency regulation or FAR provision, shall be constructed and interpreted according to the federal common law of government contracts as enunciated and applied by federal judicial bodies, boards of contract appeals, and quasi-judicial agencies of the federal Government. All claims, legal proceedings or litigation arising in connection with this Purchase Order will be brought solely in the federal or state courts located in Arlington County, Virginia, and the parties consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. Each party hereby irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect to any litigation directly or indirectly arising out of under or in connection with this Purchase Order. Until final resolution of any dispute hereunder, Seller shall proceed diligently with the performance of this Purchase Order as directed by MAPC.
(c) This Purchase Order and attached Terms constitute the entire agreement between the parties and supersedes all prior agreements and understandings, written or oral, between the parties with respect to the subject matter hereof and may not be modified except by a written amendment executed by both parties.
14) INSURANCE
Prior to commencing the Work, Subcontractor shall procure, and thereafter maintain, at its own expense, until final acceptance of the Work or later as required by the terms of the Subcontract or any individual Work Order, insurance coverage required by this Subcontract. At a minimum, and subject to modification in individual Work Orders, the types of insurance and minimum policy limits specified shall be maintained in a form and from insurers acceptable to Contractor as set forth below. All insurers shall have at least an A- (excellent) rating by A.M. Best and be qualified to do business in the state where the project is located.
This insurance will provide a defense and indemnify the Contractor, but only with respect to liability for bodily injury, property damage and personal and advertising injury caused in whole or in part by the Subcontractor’s acts or omissions or the acts or omissions of those acting on the Subcontractor’s behalf.
Proof of this insurance shall be provided to the Contractor before the Work commences, as set forth below. To the extent that the Subcontractor subcontracts with any other entity or individual to perform all or part of the Subcontractor's Work, the Subcontractor shall require the other Sub-Subcontractors to furnish evidence of equivalent insurance coverage, in all respects, terms and conditions as set forth herein, prior to the commencement of work by the Sub-Subcontractor. In no event shall the failure to provide this proof, prior to the commencement of the Work, be deemed a waiver by the Contractor of Subcontractor's or the Sub-Subcontractor's insurance obligations set forth herein.
(a) In the event that the insurance company(ies) issuing the policy(ies) required by this exhibit deny coverage to the Contractor, the Subcontractor or the Sub-Subcontractor will, upon demand by the Contractor, defend and indemnify the Contractor at the Subcontractor's or Sub-Subcontractor’s expense.
Commercial General Liability Insurance
$1,000,000 Each Occurrence Limit (Bodily Injury and Property Damage) $2,000,000 General Aggregate per Project
$2,000,000 Products & Completed Operations Aggregate
$1,000,000 Personal and Advertising Injury Limit
Business or Commercial Automobile Liability Insurance
$1,000,000 combined single limit per accident
Workers' Compensation and Employers' Liability Insurance
$100,000 Each Accident; $100,000 Each Employee for Injury by Disease; $500,000 Aggregate for Injury by Disease
Excess or Umbrella Liability (to overlay Employer’s Liability, Automobile Liability and Commercial General Liability coverages):
$1,000,000 Occurrence /Aggregate
The Subcontractor’s Commercial General Liability policy shall not contain an exclusion or restriction of coverage for the following:
Claims by one insured against another insured, if the exclusion or restriction is based solely on the fact that the claimant is an insured, and there would otherwise be coverage for the claim.
Claims for property damage to the Contractor’s Work arising out of the products-completed operations hazard where the damaged Work or the Work out of which the damage arises was performed by a Subcontractor.
Claims for bodily injury other than to employees of the insured.
Claims for indemnity under Article 4 Indemnification arising out of injury to employees of the insured.
Claims or loss excluded under a prior work endorsement or other similar exclusionary language.
Claims or loss due to physical damage under a prior injury endorsement or similar exclusionary language.
Claims related to residential, multi-family, or other habitational projects, if the Work is to be performed on such a project.
Claims related to roofing, if the Work involves roofing.
Claims related to exterior insulation finish systems (EIFS), synthetic stucco or similar exterior coatings or surfaces, if the Work Involves such coatings or surfaces.
Claims related to earth subsidence or movement, where the Work involves such hazards.
Claims related to explosion, collapse and underground hazards, where the Work involves such hazards.
(b) Additional Insured:
The Contractor and Owner, along with their respective officers, agents and employees, shall be named as additional insureds for Ongoing Operations and Products/Completed Operations on the Subcontractor's and any Sub-Subcontractor's Commercial General Liability Policy and Excess or Umbrella Policy, all of which must be primary and noncontributory with respect to these additional insureds. The Subcontractor shall continue to carry Completed Operations Liability Insurance for at least the length of the Statute of Repose in the state where the subject work is performed after either ninety (90) days following Substantial Completion of the Work or final payment to the Contractor on any individual Project, whichever is later.
The Contractor and Owner, along with their respective officers, agents and employees shall be named as additional Insureds on the Business or Commercial Automobile Liability Policy, which must be primary and noncontributory with respect to these additional insureds. It is expressly understood by the parties to this Subcontract that it is the intent of the Parties that any insurance obtained by the Contractor is deemed excess, non-contributory and not co-primary in relation to the coverage(s) procured by the Subcontractor, the Sub-Subcontractor or any of their respective consultants, officers, agents, subcontractors, employees or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of the aforementioned may be liable by operation of statute, government regulation or applicable case law.
To the fullest extent permitted by applicable state law, a Waiver of Subrogation Clause shall be added to the General Liability, Automobile, Excess or Umbrella and Workers Compensation policies in favor of Contractor and Owner, and this clause shall apply to the Contractor's and Owner's officers, agents and employees, with respect to all Projects during the policy term.
Prior to commencement of Work on any individual Project, Subcontractor shall submit a Certificate of Insurance in favor of Contractor and an Additional Insured Endorsement (in a form acceptable to the Contractor) as required hereunder. The Subcontractor’s Insurance policies shall provide for thirty (30) days' written notice to Contractor for cancellation or any change in coverage and be evidenced by the Certificate of Insurance. Copies of insurance policies shall promptly be made available to the Contractor upon request.