Standard Terms and Conditions
HYVAL INDUSTRIES, INCORPORATED
STANDARD TERMS AND CONDITIONS
The "Order" together with any documents incorporated herein, constitutes the entire agreement between HyVal Industries, Inc. (Buyer) and Seller, and supersedes all previous communications, oral or written.
- Acceptable - Acknowledgement of this Order, or the furnishing of any work or acceptance of any payment by Seller under this Order constitutes an unqualified acceptance by the Seller of this Order, including these Standard Terms and Conditions. Buyer rejects all other terms and conditions proposed by Seller.
- Scope of Work - The "Work" means the services, material, and supplies described in this Order, and such other services, materials, and supplies added to the Order pursuant to the Change Clause.
- Payment and Delivery - (A) Prices include all federal, state, and local taxes. (B) After delivery and acceptance of the completed work, and under submissions of a proper invoice, Seller shall be paid the prices stated in this Order less any applicable deductions; provided, however, that no compensation shall be due Seller until payment is received by Buyer from its customer for the Work. (C) The date of any cash discount shall commence on the day the Work is accepted or the date of the receipt of a proper invoice, whichever is later. (D) Buyer will not pay any additional charges for packing and cartage which shall be in accordance with sound commercial practice, and all containers, bills of lading, and packing slips shall include the Order number. (E) The F.O.B. point is Buyer's property in Norfolk, VA. (F) Payment is subject to set off for any valid claim of Buyer against Seller arising under or relating to this or any other transaction.
- Performance Period - TIME IS OF THE ESSENCE. Seller shall complete all work within the time specified. Should Seller fail or neglect to complete all or any part of the Work in the time specified, or so fail to make progress as to endanger performance, or otherwise delay Buyer by reason of Seller's, or any of its subcontractors or suppliers, failure or neglect at any tier to perform its obligations, such shall be considered a default.
- Changes – Buyer may at any time by written Change Order make changes to this Order without notice to the sureties, including but not limited to the work or performance period. If any Change Order causes an increase or decrease in the cost of, or the time required for the work, an equitable adjustment will be negotiated. Buyer shall not be liable for any damages as a consequence of delay or disruption. Seller’s exclusive remedy for delay and disruption shall be an extension of the time for performance. Any claim by Seller for an adjustment under this clause must be asserted in writing within TEN CALENDAR DAYS from receipt of the Change Order. Nothing herein shall excuse Seller from proceeding diligently with performance of the work.
- Inspections and Testing – The work may be inspected and tested at all reasonable times and places before, during and after performance by inspectors designated by Buyer. Compliance by Seller with inspection and test requirements does not relieve Seller of the responsibility to provide work which meets all applicable requirements of this order.
- Warranties – Seller warrants that all work shall: (A) Be free from defects in workmanship and materials, (B) Be new and good marine quality, (C) Be suitable for the purpose intended, (D) Be of merchantable quality, (E) If of Seller’s design, meet all performance requirements and be free from defects in design, and (F) Conform to the requirements of this order. All warranties shall run for a minimum period of ninety calendar days from the later of redelivery of the vessel(s) to the Buyer’s customer or Seller’s completion of work. Furthermore, all guarantees and warranties, expressed or implied, shall inure to the benefit of the Buyer. Buyer shall not be deemed to have accepted any work until it has been finally accepted by the Buyer’s customer. Buyer may at any time during the warranty period require the Seller to remedy by repair, correction, or replacement, without cost to Buyer, any of the work which fails to comply with this order, including the foregoing warranties, regardless of the cause.
- Proprietary Information – This Order, as well as all information contained in documents, drawings, publications, specifications, schedules, and the like received from Buyer for the performance of the work are confidential and the property of Buyer or its customer, and such information will not be transmitted, reproduced, used or disclosed by Seller (except as necessary for the performance of the work) without the prior written approval of Buyer.
- Patent Indemnity – Seller shall to fullest extent permitted by law defend, indemnify and hold harmless Buyer, its officers, agents, employees and indemnitees from and against any and all claims, losses, suits, damages, legal and otherwise in any way, arising out of or related to any claim, action or proceeding for infringement of any United States patent or any trademark relating to or arising out of the work, or out of the use or disposal of the work.
- Property – Any of Buyer’s or its customer’s furnished property shall remain the property of Buyer or its customer, and Seller shall bear the risk of loss and damage to such property, normal wear and tear expected. Buyer and its customer shall both have the right to enter Seller’s premises at all reasonable times to inspect such property and Seller’s records with respect thereto.
- Discharge of Liens – Seller shall immediately discharge or cause to be discharged any lien or right in rem of any kind which at any time exists or arises in connection with the work. The Seller shall not incur any debts, obligation or charge upon the credit of the vessel(s). Seller shall provide Buyer with a “Certificate of No Liens” in a form to be prescribed by Buyer.
- Labor Disputes – Whenever an actual or potential labor dispute delays or threatens to delay the performance of the work, the Seller shall immediately give notice thereof to Buyer. Such notice shall be confirmed in writing and shall contain all information relevant to the dispute.
- `Compliance the Law- (A) Seller shall comply with all federal, state and local laws, regulations, ordinances, orders, notices, actions, policies or common laws, including, but not limited to, those concerning the proper handling, transportation, treatment, removal or storage of hazardous wastes, substances or materials, or any substance the presence of which requires investigation or remediation, the Fair Labor Standards Act of 1938 (29 U.S.C. 201-219), the Occupational Safety And Health Act of 1970, the Bay American Act (41 U.S.C. 10), AND Executive Order 10582, December 17, 1954, all as amended, and including any regulations or standards issued there under, (B) Seller certifies that it is eligible to receive contracts from the Federal Government and that neither it nor its principals or employees have been convicted of any acts which would render the Seller or any of its principals or employees ineligible for receipt of a Federal Contract.
- FAR and DFAR flow down clauses applicable to this order are enclosed and are a part of this Purchase Order.
- Termination and Default – (A) This order may be terminated by Buyer, in whole or in part, (1) whenever Seller defaults in its performance of this order, in any manner, and fails to remedy such default within three calendar days after the receipt by Seller of a notice specifying the default or (2) whenever for any reason Buyer determines that such termination is for convenience. Any termination shall be effective by mailing or delivering to Seller a “Notice of Termination”, and Buyer shall comply with all reasonable requirements set forth in such notice, (B) If as a result of a default of Seller, Buyer shall incur damages, or become obligated to pay any damages to its customer or shall otherwise incur additional expenses, including costs of acceleration or premium costs, Seller agrees to pay to Buyer plus interest, (C) If Buyer effects a termination on the basis of a default by Seller, and it is there after determined that Seller was not in default, such termination shall then be deemed to have been effected for the convenience of Buyer, (D) If this order is terminated for convenience, Seller shall only be entitled to receive as payment the difference between an amount equal to the proportion of the order price representing the percent of the work completed by Seller and accepted, and the total of all amounts paid by Seller.
- Indemnification – (A) Seller shall indemnify and hold harmless Buyer, its officers, agents, employees and indemnitees from and against any and all claims, notices, orders, losses, suits, damages (including consequential or punitive damages) legal and otherwise, and liabilities incurred by or asserted against Buyer which in any way arise out of or are related to (1) Defective work, (2) Work which does not conform to the order requirements, (3) any inaccuracy of information or violation of any certification provided by Seller, (4) Sellers failure to comply with these terms and conditions, or (5) any death, personal injury, damage or loss to property occasioned wholly or in part by any act or omission of Seller, its agents, employees, or subcontractors, arising out of or related to work; (B) Seller shall reimburse Buyer for all legal and other expenses reasonably incurred in connection with investigating or defending any claim, notice, order, loss, suit, damage, liability, or resulting action.
- Assignments and Subcontracts – Neither this order, nor any rights hereunder, shall be assignable or otherwise transferable by Seller without the prior written consent of Buyer. Seller shall not subcontract all or any portion of the work without prior written consent of Buyer. Such written consent shall not in any way diminish the responsibility of Seller to comply with this order. Furthermore, Seller shall include the terms of this order, including government regulations and clauses, into any sub-subcontract or purchase order.
- Disputes – (A) With respect to any dispute between Seller and Buyer for which Buyer’s customer is or may be liable, Seller will prepare its claim and will present it in a timely manner to the Buyer for submission to Buyer’s customer under Contract Disputes Act of 1978 (41 U.S.C. 601 et seq), or any other applicable disputes resolution provision of the Federal Government. Buyer will cooperate with Seller in presenting such claim to its customer, and will pay to Seller any amounts recovered for Seller on such claim. Buyer shall not have any obligation to submit a claim by Seller that Buyer does not in good faith believe meets applicable requirements pertaining to submissions of claims to its customer. Seller will bear all costs, including legal fees, necessary to pursue such a claim against Buyers customer, and this remedy shall be Seller’s sole and exclusive remedy in lieu of any claim directly against Buyer or pursuant to any other law or procedure, regardless of the outcome, (B) Any dispute arising under or relating to this order, not included above, shall be submitted to the United States District Court for the Eastern District of Virginia, Norfolk Division, or the Circuit Court for the City of Norfolk, (C) No litigation concerning a dispute arising under or relating to this order may be commenced by Seller more than one year after the completion of work by Seller. Seller shall proceed diligently with the work pending resolution of any dispute.