Standard Terms & Conditions for Engineering Services Agreement
This Engineering Agreement (“Agreement”), is entered into by and between the buyer (“Company”) and TAI Engineers, LLC. a Louisiana limited liability company (“Engineer”, “Seller”, or “TAI”). Company and Engineer agree to the terms and conditions as follows:
1. Retention.
The Company hereby retains Engineer to perform the tasks outlined in the TAI proposed Scope of Work ("Services"). Engineer hereby accepts such retention and agrees to perform the Services in accordance with the terms of this Agreement.
2. Scope.
The Services shall be performed by Engineer in such manner, sequence and timing as may be reasonably required by Company within the resources the Engineer has at his disposal. Company shall have no right to control Engineer or its employees and agents but shall have the right to conduct periodic inspections of work in progress, receive periodic updates of progress, and require that the Services be performed in accordance with the requirements of this Agreement.
3. Compensation.
Company shall compensate and make payment to Engineer for Services which are performed at the TAI standard rates, or price specified in TAI’s commercial proposal (“TAI Proposal”). TAI standard advance deposit of 30% of the estimated total amount, shall be made at award or issuance of Purchase Order. Unless specifically indicated in TAI Proposal the agreed price of the task excludes expenses (material costs) or time for travel to a job site other than Engineer’s offices. Unless otherwise specified, the Engineer will furnish the Company an invoice to include the Services rendered upon completion of each segment, phase or project, or twice a month, as applicable. Furthermore, Engineer shall be compensated no later than fifteen (15) days after the satisfactory completion of each segment, phase or project or after the Engineer has expended a certain amount of labor and presented a commensurate invoice for these services. Untimely payments shall accrue interest at a rate of 1.0 % per month or part thereof. If payments are delinquent by more than 45 days Engineer may, at its option, cease performance on the work. If Company is continually delinquent in making payments for more than two (2) months after invoices are presented, Company shall lose all its rights to using the material for the purpose intended or any other purpose, and Engineer may demand return of all material provided to company. These rights in this agreement shall be in addition to any other rights the Engineer may have under state, federal law or international maritime law.
4. Term.
The term of this Agreement shall commence as of the effective date stated above and shall continue for the period of one year. The Agreement shall be extended automatically for additional terms of the same duration unless either party gives at least thirty (30) days' written notice to the other of non-renewal prior to the expiration of the then-current term. Upon the expiration or termination of this Agreement, the Engineer shall, unless the parties mutually agree otherwise: (a) cease performing the Services; and (b) at the request of the Company, return to the Company any Proprietary information of the Company then in Engineer's possession, or in the possession of any third party possessing such property at Engineer's direction, instruction, request, or consent. Company shall simultaneously return to Engineer and proprietary data belonging to Engineer.
5. Representations.
Engineer makes the following representations:
(a) Engineer has all requisite power to enter into this Agreement, and the execution, delivery and performance of this Agreement does not and will not result in any violation of, be in conflict with, or constitute a default under any terms or provision of any agreement, contract, understanding, indenture or other instrument to which Engineer is a party.
(b) Engineer and any of its authorized representatives are, and shall at all times be qualified and capable of performing all obligations under this Agreement.
Company makes the following representations;
(a) Company is a corporation and business in good standing with a good credit history
(b) Company has the necessary fiscal resources to compensate Engineer for Engineer’s services
(c) The application of Engineer’s services and knowledge will be for legitimate purposes
6. Covenants of Engineer.
Engineer warrants as follows:
(a) Engineer will conduct itself at all times during the term of this Agreement to complete the tasks referenced herein expeditiously, and act in an ethical and professional manner. In performing its duties under this Agreement, Engineer's actions shall at all times be in keeping with the policies of the Engineer as set forth from time to time.
(b) Engineer warrants that, as applicable, the Services provided by it (and any of its authorized subcontractors, as applicable) under this Agreement will be performed in a workmanlike manner and in accordance with (i) requirements of this Agreement; and (ii) those practices, regulations, specifications and standards, as they may be in effect at the time services are rendered, and as are commonly used by engineering contractors in the supply of technical services in the Marine Business.
7. Proprietary Information.
Engineer and Company understand that this Agreement creates a relationship of confidence and trust between the Company and Engineer with respect to any information of a confidential, propriety or trade secret nature that may be disclosed to Engineer by Company or the Engineer to the Company (“Proprietary Information”). Engineer and Company agree to treat all Proprietary Information, so marked, as confidential, and not to use such Proprietary Information other than for the purpose intended, and to take all reasonable precautions against disclosure of such Proprietary Information to third parties (other than to Engineer's or Company’s employees, contractors or subcontractors having a need to know such Proprietary Information). At termination of this Agreement, upon request by Company or Engineer, the other party will promptly return to the requesting party all copies of the Proprietary Information being requested. Company further agrees that the information Engineer uses to provide services to Company is based on a long history of learning and development, and that for the compensation provided to Engineer, Company is receiving the services for the specific purpose intended, and that Company is not receiving unlimited data rights and royalty free use of the information for additional applications, unless specifically agreed to elsewhere in this agreement.
8. Indemnity.
Engineer shall protect, defend, indemnify and hold harmless Company and its subsidiaries, affiliated companies, owners and joint ventures (if any), and their respective officers, directors, agents, and employees from and against all reasonable claims, demands, expenses (including reasonable attorneys fees and court costs) and causes of action asserted by any party (including, but not limited to employees of Engineer) that arise out of or are related to the Services and are caused by or arise out of Engineer's negligent acts or omissions or willful misconduct and result in actual personal injury (including bodily injury), illness, death or property loss or damage, or any civil fines or penalties imposed by any governmental agency, officer or court of law; provided, however that such obligations in this Section 8 shall only extend to the extent of Engineer’s fault, negligence, or willful misconduct.
Company shall protect, defend, indemnify and hold harmless Engineer and its subsidiaries, affiliated companies, owners and joint ventures (if any), and their respective officers, directors, agents, and employees from and against all reasonable claims, demands, expenses (including reasonable attorneys fees and court costs) and causes of action asserted by any party (including, but not limited to employees of Company) that arise out of or are related to the Services and are caused by or arise out of Company's negligent acts or omissions or willful misconduct and result in actual personal injury (including bodily injury), illness, death or property loss or damage, or any civil fines or penalties imposed by any governmental agency, officer or court of law; provided, however that such obligations in this Section 8 shall only extend to the extent of Company’s fault, negligence, or willful misconduct.
Engineer does not have any liability under this agreement or otherwise resulting from the performance of, or the failure to perform, services for loss of Company anticipated profit by reason of any business interruption, or indirect, special or consequential damages, whether or not caused by or resulting from Engineer’s negligence.
9. Overall Limitation of Liability.
Notwithstanding any other provision of the Agreement to the contrary, Engineer’s total aggregate liability for any and all claims arising out of or in connection with its services hereunder will not exceed 25% of the amounts paid to Engineer arising out of this Agreement.
10. Services performed by others.
At its option, Engineer may cause any service it is required to provide hereunder to be provided by another member or associate of Engineer or by any other person that is providing, or may from time to time provide, the same or similar services for associates of the Engineer. In such a case, Engineer shall be responsible for these services as stipulated herein.
11. Warranty.
Engineer warrants the work will be done using good engineering practices, and in compliance with commercial industry’ standards for such work. Engineer also warrants that the work will meet a commercial level of detail required for purpose intended and meet applicable regulations. The Engineer will allow Company, or its designated representative, to review and approve Engineer’s work. Engineer will incorporate at no extra charge to Company any comments the reviewer provides after one cycle of review. Similarly, Engineer warrants that it will incorporate review comments from regulatory bodies after one review cycle. Engineer shall not be responsible for the time it takes for any of the reviewing parties to provide their comments. This is the total warranty for the work to be provided by Engineer. Other than re-doing any defective work reported within a one-year period of providing such work and other terms in this warranty there are no other warranties express or implied, including but not limited to merchantability, and fitness for a particular purpose, nor the quality, suitability, or adequacy of services for any other purpose.
12. Survival.
Notwithstanding the termination of this Agreement, the provisions of Section 4,7,8 and 11 of this Agreement shall survive such termination.
13. Successor and Assignment.
This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and Assigns.
14. Additional Services
From time to time after the Effective Date, the parties may, by mutual agreement, identify additional services that Engineer party will provide to Company in accordance with the terms of this Agreement. These services shall be compensated for in accordance with the rate schedule in TAI Proposal.
15. Format of deliverables.
All deliverables shall be provided in a format so that the Company can reproduce the information to make multiple copies for the purpose intended. Computer files and electronic data shall be in a similar format; however, it shall not be provided in a format which allows the Company to manipulate or alter the information without the express permission of Engineer. Original documents, survey notes, digital files, tracings, and the like, except those furnished to the Engineer by the Company, are and shall remain the property of the Engineer as instruments of service.
16. Severability.
If any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed to be modified to conform with such statute or rule of law. Any provision hereof that may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.
PURCHASE ORDER GENERAL TERMS AND CONDITIONS
Acceptance. TAI Engineers, LLC. ("Company") and the other person or entity named on the face of a Purchase Order ("Seller") agree that these General Terms and Conditions shall be part of any contract formed between the parties as a result of a Purchase Order. "Purchase Order" or "PO" means an order issued from time to time by Company to Seller for goods and/or services. The term "goods" includes everything other than services. Before any Purchase Order issued by Company becomes a binding contract, it constitutes an offer to enter into a contract that can be revoked at any time, in whole or in part, by Company prior to acceptance by Seller.
Specifications. Any commercial, technical, or other specifications included in the Purchase Order or any addenda thereto, shall be conclusively presumed to be accepted as additional terms and conditions upon commencement of performance or acknowledgment by Seller. Seller agrees to be bound by each and every requirement, specification and document so incorporated therein.
Delivery. "Delivery" shall occur when goods and/or services are received by Company at the address shown on the face of and in accordance with the terms of the applicable Purchase Order. Risk of loss and damage to goods shall remain with Seller until Delivery. All costs of returning damaged goods, including packing, shipping, and insuring, shall be borne by Seller.
Warranties. Seller warrants for a period of one year, commencing from date of Delivery, that all goods and services shall be of good quality, free from defect, fit, suitable and sufficient for their intended use; and additionally, that goods shall be electrically, electronically, mechanically, structurally and functionally sound. Information to be supplied with warranty for performance and supplier accepts all liabilities to meet performance requirements as proposed. Seller agrees that the foregoing warranties shall be in addition to, and not limited by, any warranties provided by law or offered by Seller.
Inspection. Without affecting other rights under the Purchase Offer, Company may inspect all goods prior to shipment by Seller, and Seller shall give Company's representatives access to Seller's facilities at all reasonable hours for purposes of making such inspections.
Packaging & Shipment. The price of goods includes all applicable costs and charges for packing, loading, shipping and insurance, all of which shall be arranged or performed by Seller in a manner that meets carrier requirements and safeguards goods against damage and loss. Each package shall be marked to show the Company PO number and part numbers, and shall include a packing list of all contents.
Prices & Payments. All prices stated in the Purchase Order are firm and not subject to escalation. Seller warrants that the prices set forth in this Purchase Order are at least as low as those currently being quoted by Seller to commercial users for the same goods and/or services, in like quantities, under similar circumstances. Unless otherwise expressly agreed, payment terms are NET 30 days from receipt of Seller's invoice for goods and/or services Delivered and accepted by Company. Invoices must reference the corresponding Purchase Order number and be delivered with supporting documents to the following address:
TAI Engineers, LLC.
2021 Lakeshore Drive, Suite 414
New Orleans, LA 70122
With copies emailed to: A.Raj@TAIEngineers.com and AP@TAIEngineers.com
Tax Exemption. Purchases of goods and services for vessels engaged in interstate marine transportation are exempt from state and local sales and use taxes; therefore, Seller shall not charge Company such taxes for such goods or services. Company shall furnish all appropriate tax exemption certificates to Seller upon request.
Indemnification. IN THE EVENT THAT ANY REPRESENTATIVES OF SELLER ARE ON COMPANY'S PREMISES OR ITS VESSELS, SELLER AGREES TO INDEMNIFY AND SAVE COMPANY AGAINST ALL LIABILITIES, LOSSES, DAMAGES AND EXPENSES, INCLUDING REASONABLE ATTORNEY FEES, FOR PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE OF SELLER, ITS EMPLOYEES, AGENTS, OR ITS SUBCONTRACTORS OR THEIR AGENTS OR EMPLOYEES, INCIDENT TO, ARISING OUT OF, OR RESULTING FROM THE ACTIVITIES OF SELLER, ITS EMPLOYEES AND AGENTS, OR ITS SUBCONTRACTORS AND THEIR AGENTS AND EMPLOYEES, OR IN CONNECTION WITH THE WORK TO BE PERFORMED, SERVICES TO BE RENDERED, OR GOODS TO BE FURNISHED, UNDER ANY PURCHASE ORDER, EXCEPT IN THOSE INSTANCES WHERE SUCH LIABILITY, LOSSES, DAMAGES OR EXPENSES ARE CAUSED SOLELY AND DIRECTLY BY COMPANY'S NEGLIGENCE.
Entire Contract. The Purchase Order, when accepted by Seller, shall constitute the entire contract between Company and Seller. Seller's commencement of work on goods for Company or shipment of goods to Company, whichever occurs first, shall be deemed an effective mode of acceptance of Company's offer to purchase contained in this Purchase Order. Any acceptance of this Purchase Order is limited to acceptance of the express terms of the offer contained herein. Any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller's acceptance is hereby objected to and rejected but such proposal shall not operate as a rejection of this offer unless such variances are in the terms of the description, quantity, price, or delivery schedule of the goods but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by the Seller without said additional or different terms. If this Purchase Order shall be deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms contained herein. Additional or different terms or any attempt by Seller to vary in any degree any of the terms of this Purchase Order shall be deemed material and shall be rejected. However, this Purchase Order shall not operate as a rejection of the Seller's offer unless it contains variances in the terms of the description, quantity, price, delivery schedule, of the goods. In the event of any conflict, the terms and conditions of the P.O. shall supersede those of the Seller's offer.
Changes. Company may from time to time, by written instruction, make changes, issue additional instructions, or require additional work. These General Terms and Conditions shall apply to all such written modifications unless the parties agree otherwise. No additions, extra work, or alterations shall be paid for by Company unless performed pursuant to, and in accordance with a written Purchase Order of the Company.
Cancellation. Company may cancel a Purchase Order at any time by giving written notice to Seller. An equitable adjustment in price and/or other terms shall be negotiated for goods and/or services Delivered or in the process of being Delivered at time of the cancellation.
Hazardous Materials. Seller certifies that it has reported and shall continue to report, in accordance with the Toxic Substances Control Act ("TSCA") and the Inventory Reporting and Premanufacture Notice regulations of the U.S. Environmental Protection Agency, all reportable chemical substances which Seller currently manufactures or may manufacture in the future and which are supplied by Seller to Company. Seller further certifies that it has taken appropriate action to assure that chemical substances which Seller does not manufacture, and which are components of Seller's goods sold to Company, have been reported as required by the Inventory Reporting and Premanufacture Notice regulations. Seller further certifies that for any chemical substance supplied to Company, Seller shall inform Company of any TSCA restriction governing the use of such chemical substance including, but not limited to, proposed or final significant new use rule restrictions. Seller shall submit a material safety data sheet ("MSDS") for each hazardous material to the Company (attention: Environmental Health & Safety Manager) within fifteen (15) days of issuance of the Purchase Order. For the purposes of any Purchase Order, "hazardous materials" means any explosives, radioactive materials, PCBs, CFCs, or substances defined as "hazardous substances" in the Comprehensive Environmental Response and Liability Act of 1980, as amended from time to time.
MSA. In the event a Master Service Agreement ("MSA") is in effect between the parties at the time any PO is issued, and a conflict or inconsistency exists between the terms and conditions of the MSA and the Purchase Order, the terms and conditions of the MSA shall control.
Nondiscrimination. Seller agrees to comply with all provisions of Executive Order 11246, as amended by Executive Order 11375 and all rules, regulations and relevant orders of the Secretary of Labor related to equal employment opportunity that are in effect on the date of any Purchase Order.
Compliance with Laws. Seller shall comply with all statutes, legal directives and regulations in its performance under any Purchase Order. In the event that goods do not conform to any legal requirement in addition to the requirements of any Purchase Order and Company sustains any liability or penalty for such nonconformance, Seller shall indemnify Company for all such liability costs and expenses, including attorney fees and interest.
Law & Venue. Any claims arising from or related to this Purchase Order shall be litigated exclusively in a court of competent jurisdiction in or for Orleans Parish, Louisiana, under Louisiana law. Seller agrees to the jurisdiction of said courts. In case of a dispute over this Purchase Order, the prevailing party shall be entitled to recover reasonable attorney fees and costs after final, non-appealable judgment. Any agreement between the parties shall be interpreted as having been drafted jointly by the parties. Accordingly, any rule of law that would require interpretation of any ambiguities in an agreement against the party that drafted a particular provision is not applicable and is hereby waived.
Time of the Essence. Time is of the essence for all Purchase Orders. Seller shall give timely notice to Company of any expected delay in delivery. Unauthorized advance shipments and shipments other than for the quantity ordered are returnable at Seller's expense.
Intellectual Property. Seller grants to Company a license for all intellectual property rights that are necessary for Company and its affiliates to use any of the goods or benefit from any of the services Delivered by or on behalf of Seller. Seller represents and warrants to Company that software provided to Company by or on behalf of Seller, whether integrated into or as separate goods or in connection with services, does not infringe upon or constitute an unauthorized use of any patent, trade secret, copyright, or other proprietary right. Seller shall hold harmless, indemnify and defend Company for any suit or proceeding brought against Company based on a claim that any goods or services purchased or any part thereof, infringe any patent, trade secret copyright, or other proprietary right of any third party, provided Seller is notified promptly in writing and given authority, information, and assistance by Company to defend such suit or proceeding. Seller shall pay all costs of defending such suits or proceedings, including attorney fees, any damages awarded against Company and any amounts agreed upon by Seller to settle such claims. If the use of goods, or any part thereof, is enjoined due to infringement, or precluded by settlement, Seller shall promptly, at its own expense, and at its option, either procure for Company the right to continue using such goods, replace the same with non-infringing goods that conform to applicable specifications, or modify such goods in a manner acceptable to Company so they become non-infringing.
Separate Contracts. Company reserves the right to enter into other agreements in connection with the goods and/or services provided hereunder or otherwise, in its sole discretion. Seller shall afford other contractors reasonable cooperation in the execution of their work conducted pursuant to any such agreements.
Conflict of Interest. Neither Seller nor any tier subcontractor of Seller shall hire any employee or officer of Company while that employee or officer is an employee or officer of Company, or make any payments to any employee or officer of Company, or to any designee of any such employee or officer, or favor any employee or officer of Company, or any designee of any such employee or officer with gifts or entertainment of significant cost or value, or with services or goods sold at less than full market value.
Independent Service Provider. Nothing herein creates a joint venture, employer-employee, agency or partnership relationship between the parties. Neither party may enter into any contracts or commitments in the name of, or on behalf of, the other party, or bind the other party in any respect.
Severability; Remedies; Waiver. If any one or more provisions contained in this Purchase Order are held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the remaining provisions shall nonetheless remain valid and enforceable. The remedies contained herein are cumulative and in addition to any other remedies at law or equity. Company's failure to enforce, or waiver of a breach of, any provision of this Purchase Order does not constitute a waiver of any other breach or of such provision.
Assignment. Company may assign this Purchase Order at any time. Seller shall not assign this Purchase Order or any of its rights, duties, or obligations under this Purchase Order, including without limitation any right to payment, without the prior written consent of Company. This Purchase Order shall inure solely to the benefit of the parties hereto and their respective successors and permitted assigns, except as specifically provided by this Purchase Order. Seller shall not subcontract all or any portion of the services covered by this Purchase Order without the prior written consent of Company.
Title and Risk of Loss. Seller represents and warrants to Company that it has, and that Company shall receive from Seller good, valid and marketable title to all goods supplied hereunder, free and clear of any and all liens, security interests, encumbrances, pledges, rights of redemption, and/or retentions or reservations of title. SELLER AGREES TO INDEMNIFY, DEFEND AND HOLD COMPANY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEY FEES) RESULTING FROM OR RELATED TO ANY BREACH OF SAID WARRANTY. When Company is required to make installment payments in respect to goods to be manufactured and provided by Seller to Company under this Purchase Order, commencing upon the first payment made and continuing with each subsequent payment thereafter, title to such goods shall pass to Company as work proceeds commensurate with the payments made by Company to Seller. Risk of loss or damage to such goods shall not pass from Seller to Company unless and until Delivery of the goods occurs. In addition to any other rights that may exist under Louisiana law or at common law or under this Purchase Order, Seller shall be entitled to a possessory lien on each undelivered item that constitutes goods under this Purchase Order for any unpaid portion of the price for such goods then actually due and payable.
Testing and Acceptance. It shall be Seller's sole responsibility to obtain all required certifications and ratings for the goods from regulatory agencies or other third parties, and to provide documentation of compliance with such standards to Company in a timely manner. Seller represents and warrants to Company that any and all such documentation to be valid and accurate. When a Factory Acceptance Test ("FAT") is required, a detailed FAT shall be performed on the goods at Seller's facility in accordance with Seller's standard protocol to ensure conformity with contract specifications and to enable such goods to receive required classifications and certifications. Seller shall submit to Company its FAT protocol at least thirty (30) days in advance of the test date. Company shall have the right to reject or comment on the FAT protocol, to require reasonable changes in the FAT protocol to assure that sufficient testing is done to prove compliance with all such requirements, and to have an authorized representative attend the FAT. Company shall be given a minimum seven (7) day advance notice of the scheduled dates for the FAT. When sea trials are required, the goods will undergo sea trials to prove that, without limitation, the construction, design, machinery, equipment and systems of the goods operate in accordance with all contractual, technical, and regulatory requirements and specifications. Upon completion of all required FAT and sea trials and any corrective measures to the satisfaction of Company, Company shall sign an appropriate Acceptance Certificate confirming acceptance of the goods by Company.
Information. Seller represents and warrants to Company that all information, data, manuals, instructions and certifications furnished by Seller in connection with this Purchase Order is true, complete and accurate in all material respects, and that Seller has no reason to believe any such information to be inaccurate in any material respect since the date such information was furnished to Company.
Company Policies. Seller represents and warrants to Company that no gratuities or anything of value has been given to or received from any representative of Company, and that Seller shall abide by Company's Code of Business Conduct and Ethics Policy.