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PART A. PERFORMANCE IN GENERAL
- ASSIGNMENT
Neither this Contract nor the consideration due hereunder may be assigned by Lessor, in whole or in part, without Lessee's prior written consent.
- CHANGES
- Lessee may at any time, by written order, make changes to this Contract. If any such change causes an increase or decrease in the cost of, or the time required for, performance of this Contract, Lessee shall make an equitable adjustment in the Contract Price, the Rental Property delivery and retrieval schedule, or both, and shall so modify this Contract.
- Within twenty (20) days from the date of receipt of any written change order, Lessor shall submit to Lessee a detailed written estimate of the impact of the change on the Contract Price, the Rental Property delivery and retrieval schedule, and the performance capabilities of any Rental Property. Upon receipt of this estimate, Lessee shall begin good faith negotiations with Lessor to determine an equitable adjustment to the Contract.
- The failure of the parties to agree to any equitable adjustment shall be dispute under the Disputes paragraph of this Contract. Nothing in this Changes paragraph, however, shall excuse Lessor from proceeding with diligent performance of this Contract as changed.
- COMPLIANCE WITH LAW
Lessor shall, in the performance of this Contract, fully comply with all applicable federal, state and local laws, rules, regulations, orders, conventions, ordinances and standards that relate to the Rental Property. Lessor shall defend, indemnify and hold Lessee harmless from any and all claims and liabilities resulting from any failure to so comply.
- CONFIDENTIALITY OF DATA AND INFORMATION
Information furnished by Lessee and identified by Lessee as "NASSCO Proprietary/Trade Secret Information" or otherwise identified as subject to restricted access or dissemination shall be and remain property of Lessee; shall not be duplicated, used or disclosed to third parties except for the purpose and to the extent necessary for the performance of this Contract; and upon completion of this Contract, shall be delivered to Lessee or destroyed by Lessor as Lessee specifies (including all copies). Lessor shall take all reasonable precautions to maintain in confidence all such information, including the imposition upon any person, firm, or corporation to whom disclosure of such information is made in the course of performance under this Contract of conditions relating to the confidential treatment thereof to the same effect as those imposed upon Lessor herein. The obligations imposed upon Lessor herein shall not apply to such information that is already known to Lessor, is lawfully obtained or obtainable by Lessor from another source, is or comes into the public domain other than as a result of breach of this Confidentiality of Data and Information paragraph.
- CONTRACT ACCEPTANCE, INTEGRATION AND MODIFICATION
- Lessor shall strictly perform this Contract. Acceptance of this Contract is expressly limited to the terms and conditions hereof and shall be made by executing the "acknowledgment copy" of the purchase order and returning the same to Lessee. If for any reason Lessor should fail to accept this Contract in writing, any performance by Lessor of any portion of this Contract shall constitute complete acceptance of this Contract. Any terms proposed in the acceptance of this Contract, which add to, vary from, or conflict with the terms and conditions of this Contract, are hereby objected to and shall be void.
- This Contract constitutes the entire agreement between the parties and supersedes all previous communications, representations or agreements, whether oral or written, between the parties. No terms other than those set forth herein or in the purchase order shall apply. Lessor represents that, in entering into this Contract, it does not rely on any previous oral or implied representation, inducement, or understanding of any kind.
- This Contract may be amended or modified only by a written instrument executed by authorized representatives of both Lessee and Lessor.
- DEFINITIONS
- "Lessee" means National Steel and Shipbuilding Company.
- "Contract" means the purchase order, these Terms and Conditions, the Specifications, and any other documents incorporated by referenced by the purchase order.
- "Contract Price" means the total price to be paid by Lessee to Lessor for the proper furnishing of the Rental Property as set forth in this Contract.
- "Rental Property" means the equipment, products, or other personal property to be furnished by Lessor.
- "Lessor" means the individual or entity identified on the face of the purchase order by whom the Rental Property is to be furnished.
- "Specifications" means the technical specifications, plans, data, drawings, diagrams, schedules and any other documents that describe the Rental Property.
- DELIVERY AND RETRIEVAL OF RENTAL PROPERTY
Lessor shall deliver the Rental Property to, and retrieve the Rental Property from, Lessee’s facility at Lessor’s sole expense.
- DISPUTES
- Any dispute between Lessee and Lessor in connection with or arising out of this Contract shall be resolved by means of the following procedures:
- The dispute initially shall be referred to each party’s senior executive with responsibility for this Contract, who shall negotiate in good faith to reach a resolution of the dispute.
- In the absence of a resolution being achieved within thirty (30) days after either Lessee or Lessor offers to conduct the negotiations in subparagraph (a)(i), above, either party may take appropriate action pursuant to subparagraph (b) hereof.
- Any dispute not resolved in accordance with subparagraph (a), above, may be resolved by any lawful means, including litigation, which shall be initiated by either party in a court of competent jurisdiction in San Diego County, California, and both parties consent to such exclusive jurisdiction and venue.
- In resolving any dispute under this Contract, each party shall bear its own attorney's fees and costs.
- Until final resolution of any dispute hereunder, Lessor shall diligently proceed with the performance of this Contract as directed by Lessee.
- EXPORT CONTROL COMPLIANCE AND COOPERATION
Lessor shall comply with the Export Administration Regulations (15 CFR 730—774), the regulations issued by the Office of Foreign Assets Control (31 CFR Chapter V), and all other applicable laws, regulations and orders that control the export of commercial and dual-use items and associated technology. In addition, Lessor shall inform Lessee in writing of the name and citizenship of each employee of Lessor who will participate in the performance of this Contract at Lessee’s facilities who is not a United States citizen or lawful permanent resident. Lessor shall cooperate fully with Lessee in applying for any export license or approval which may be required for any such employee and in justifying and documenting any license or approval exception. Lessor shall not permit any such employee to participate in the performance of this Contract over Lessee’s objection based on noncompliance with this Export Control Compliance and Cooperation paragraph.
- INDEMNITY
- Lessor shall defend, indemnify and save Lessee, its affiliated companies, and each of their directors, officers, agents and employees, free and harmless from and against all claims and liabilities of any nature, and all costs and expenses incurred in connection therewith (including, but not limited to, attorneys fees) for death or injury to persons (including, but not limited to, agents and employees of Lessor and its subcontractors) and for damage or loss of property arising directly or indirectly out of or in connection with Lessor’s delivery, retrieval, condition and maintenance of the Rental Property, including, without limitation, claims and liabilities based in whole or in part on the negligence or other theory of liability of Lessor or Lessor’s subcontractors, and excluding only claims and liabilities based on Lessee’s sole negligence or willful misconduct.
- Lessee shall defend, indemnify and save Lessor, its affiliated companies, and each of their directors, officers, agents and employees, free and harmless from and against all claims and liabilities of any nature, and all costs and expenses incurred in connection therewith (including, but not limited to, attorneys fees) for death or injury to persons (including, but not limited to, agents and employees of Lessee and its subcontractors) and for damage or loss of property arising directly or indirectly out of or in connection with Lessee’s operation and use of the Rental Property, including, without limitation, claims and liabilities based in whole or in part on the negligence or other theory of liability of Lessee or Lessee’s subcontractors, and excluding only claims and liabilities based on Lessor’s sole negligence or willful misconduct.
- INDEPENDENT CONTRACTOR
In performing this Contract, Lessor shall be an independent contractor to Lessee and shall not be an agent or employee of Lessee. Lessor shall be solely responsible for determining the means and methods of performing this Contract. Lessor assumes full responsibility for the payment of all compensation, expenses, and benefits (including, but not limited to, Workers' Compensation, medical, and other benefits) to its employees and for all state and federal income tax, unemployment insurance, social security, disability insurance, and other applicable withholdings.
- INTERPRETATION
This Contract shall be enforced and interpreted under California law without regard to which party drafted the Contract or to California's choice of law provisions. If any provision of this Contract is determined to be unenforceable, all other provisions shall remain in effect. This Contract shall not be varied, supplemented, qualified or interpreted by any prior course of dealing or usage of trade. Paragraph headings are for convenience only and shall not be used to interpret this Contract. In the event of any conflict or inconsistency between any provisions of this Contract, the following precedence shall be followed: the purchase order; these Terms and Conditions; the Specifications; any other document incorporated by reference by the purchase order.
- INVOICES AND PAYMENT
- Invoices shall include: the purchase order number; the invoice number; description of all Rental Property furnished; the dates Rental Property was delivered or retrieved; and comprehensive, itemized rental prices. Incorrect and incomplete invoices shall be returned for correction and shall delay the commencement of Lessee's obligation to pay for the Rental Property until a corrected invoice is received by Lessee. Lessee shall pay Lessor only for the complete, proper and timely performance of this Contract, and Lessee shall have the right to withhold payment for any failure of Lessor to strictly comply with this Contract. No payment of any portion of the Contract Price shall constitute Lessee’s acceptance of Lessor’s performance of this Contract.
- Lessee shall pay Lessor within thirty (30) days from receipt of a proper invoice by Lessee.
- LOSS, DESTRUCTION OR DAMAGE OF RENTAL PROPERTY
Lessee shall not be liable for the loss of or damage to the Rental Property unless directly caused by Lessee’s negligence or intentional misconduct in the care, operation or use of the Rental Property during the term of this Contract. Lessor shall not have, or be entitled to make, any claim for any such loss or damage unless Lessor gives Lessee: (a) written notice of the nature, extent and amount of such loss or damage within forty-eight (48) hours after Lessor retrieves the Rental Property; and (b) the opportunity to inspect the Rental Property within seven (7) days after retrieval. In no event shall Lessee be liable for loss of rent or for any other consequential damages.
- NONWAIVER
Lessee's waiver of any provision of this Contract shall not constitute wavier of that provision in any later circumstances or waiver of any other Contract provision.
- NOTICES
Unless expressly directed otherwise, notices required by this Contract to be given by Lessor or Lessee to the other party shall be personally served upon Lessor or Lessee or served by facsimile and first class mail addressed to the appropriate address hereinafter set forth or to such other address as Lessor and Lessee may hereafter designate by written notice. If served by facsimile and first class mail, service will be considered complete and binding on the party served immediately upon completion of said facsimile transmission, as evidenced by a confirmation of successful transmission.
- To Lessor:
As indicated on face of the purchase order
To Lessee:
National Steel and Shipbuilding Company
P.O. Box 85278
San Diego, CA 92186-5278
Attn: Manager, MRO Purchasing
Facsimile Number: (619) 544-3677
- REMEDIES
All remedies are cumulative, and the exercise of a remedy conferred by this Contract or in law or equity shall not preclude the exercise of any other remedy under this Contract or in law or equity.
- SCOPE OF PERFORMANCE
Lessor shall provide all labor, materials, equipment, tools, services, and supervision, and shall bear all items of expense, necessary for the complete and satisfactory performance of this Contract, except such items that Lessee, in this Contract, specifically agrees to provide to or for the use of Lessor. Any labor, materials, equipment, tools, services or supervision not specifically described in this Contract, but which may be fairly implied as required thereby or necessary to properly furnish the Rental Property, shall be deemed within the scope of this Contract and shall be provided by Lessor at Lessor’s sole expense.
- TERMINATION FOR DEFAULT
- Lessee may terminate this Contract for default if Lessor: fails to assure timely performance; fails to perform on time; ceases performance prior to completion of this Contract; evidences insolvency or financial inability to perform; or fails to cure the material breach of any other provision of this Contract within ten (10) days of notice of such breach.
- In the event Lessee terminates this Contract in whole or in part, Lessee may procure, upon such terms and in such manner as Lessee may reasonably determine, property similar to the Rental Property specified herein, and Lessor shall be liable to Lessee for any excess costs for such similar property. If this Contract is terminated only in part, Lessor shall continue the performance of this Contract to the extent not terminated.
- Upon termination of this Contract for default, Lessor shall immediately retrieve the Rental Property and cease further performance of this Contract.
- THIRD PARTY RIGHTS
This Contract is intended solely for the benefit of Lessee and Lessor and is not intended for the use or benefit of any other party. Nothing contained in this Contract is intended to make any person or entity that is not a signatory to this Contract a third party beneficiary of any right created by this Contract.
- TIME OF PERFORMANCE
- Lessor shall perform this Contract in a diligent manner and in no event later than the time(s) specified on the face of the purchase order. Time of performance as specified in this Contract is of the essence of this Contract. If at any time it reasonably appears to Lessee that Lessor is failing to make progress, such that performance may not be completed in accordance with this Contract, Lessor shall, within seven (7) days of a written request by Lessee, assure timely performance and represent to Lessee in writing Lessor’s best completion date. If the represented completion date is not within the original time for completion of performance of this Contract, Lessee may terminate this Contract for default in accordance with the Termination for Default paragraph. Lessee shall further have the right, but not the duty, and without waiver of any other rights and remedies that it may have, to extend the time for completion of performance. The new date for completion of performance shall be final, of the essence of this Contract, and subject to further change only in accordance with this Contract.
- Lessor shall not be liable for delays caused by force majeure events that are beyond the control and without the fault or negligence of the Lessor, including, but not limited to, acts of God or the public enemy, fires, earthquakes, floods, epidemics, quarantine restrictions or natural disasters, on condition that Lessor notifies Lessee of any such force majeure events within five (5) days of the start of any such delays. Lessor shall cooperate with Lessee, and Lessor shall use its best efforts, to recover any such delays caused by any such force majeure events.
- WARRANTY OF CONDITION OF RENTAL PROPERTY
Lessor expressly warrants that the Rental Property shall be in first-class condition, in good working order, in conformance with this Contract, and equipped with all required safety devices as to operate properly and render safe, efficient, economical and continuous service. If the Rental Property fails to operate properly or fails to render safe, efficient, economical and continuous service at any time during the term of this Contract, Lessee shall so notify Lessor, and immediately upon such notification Lessor shall, at Lessor’s sole expense, either: (a) retrieve the Rental Property and replace it with properly operating and satisfactory equivalent Rental Property; or (b) make or pay for such repairs or maintenance as may be necessary to restore the Rental Property to properly operating and satisfactory condition. Lessee shall not be responsible for payment of the Contract Price for any period during which the Rental Property is out of service owing to its failure to operate properly or fails to render safe, efficient, economical and continuous service, unless such failure is directly caused by Lessee’s negligence or intentional misconduct in the use or operation of the Rental Property.
- WARRANTY OF TITLE TO RENTAL PROPERTY
Lessor expressly warrants that it has good title to the Rental Property and the right to enter into this Contract. Lessee shall not be required under any circumstances to surrender the Rental Property or pay any portion of the Contract Price to any person or entity other than Lessor pursuant to any lien, levy, attachment, writ or execution, court order, judicial sale, or any other legal process.
PART B. PERFORMANCE AT LESSEE'S FACILITIES
In the event that Lessor, its employees, agents and subcontractors (including Rental Equipment delivery persons) enters any facility owned, leased or operated by Lessee (including Lessee’s shipyard at 28th Street and Harbor Drive, San Diego, California), Lessor shall comply with the following additional terms and conditions. Performance at Lessee’s facilities includes, but is not limited to, delivery of the Rental Property to Lessee’s facilities, retrieval of the Rental Property from Lessee’s facilities, and the performance of repair and maintenance of the Rental Property at Lessee’s facilities.
- CLEAN-UP OF WORK SITE
Upon delivery and retrieval of the Rental Property, and during the performance of any repair or maintenance of the Rental Property, Lessor shall remove all debris, garbage or other waste material, including excess materials, scrap and equipment used or generated in performance of this Contract from Lessee's facilities. Lessor shall be liable for and shall pay to Lessee, upon demand, all costs of removal for materials or equipment not so removed.
- ENVIRONMENTAL
Lessor shall comply with Lessee’s environmental policies and procedures and with all federal, state and local laws and regulations regarding the use and disposition of hazardous substances.
- INSURANCE
- Without prejudice to Lessee’s rights and Lessor’s obligations under the Indemnity paragraph herein, Lessor shall keep and maintain in effect at its sole cost and expense the following policies of insurance:
- Commercial General Liability insurance with coverage to include broad form property damage, personal injury, premises, completed operations, and products and contractual liability (specifically insuring the liability assumed under this Contract); and with a minimum bodily injury and property damage combined single limit of $2,000,000 per occurrence and $2,000,000 in the aggregate.
- Commercial Automobile Liability insurance with coverage to include owned, hired, and non-owned vehicles; and with a minimum bodily injury and property damage combined single limit of $2,000,000 per occurrence.
- Workers' Compensation and Longshore and Harbor Workers' Compensation Act insurance with limits conforming to the statutory requirements of the State of California and the United States of America, respectively.
- If Lessor or its employees are assigned aboard a vessel for any reason and to any extent, Jones Act coverage with minimum limits of liability of $2,000,000 per occurrence and $2,000,000 in the aggregate.
- Each such policy shall be underwritten by an insurance company satisfactory to Lessee; shall provide that it is primary insurance to, and noncontributing with, any other insurance carried by Lessee; and shall obligate the insurer to give Lessee not less than thirty (30) days prior written notice in the event of policy cancellation or any material change therein. Certificates evidencing such policies, in a form satisfactory to Lessee, shall be delivered to Lessee upon issuance of the purchase order, and renewals thereof shall be sent to Lessee at least ten (10) days prior to the expiration of the respective policy terms. The policies referred to above in subparagraphs (a)(1) and (a)(2) shall be endorsed to name Lessee as an "additional insured," and the certificates provided to Lessee shall reflect such endorsement. The policies referred to above in subparagraphs (a)(3) and (a)(4) shall contain a waiver of subrogation in favor of Lessee.
- Notices regarding insurance policies shall be provided in writing and shall be deemed delivered five (5) days after deposit in the U.S. Mail, postage prepaid, certified mail and return receipt requested, when addressed to National Steel and Shipbuilding Company, Attention: Risk Manager (M/S 20-E), P.O. Box 85278, San Diego CA 92186-5278.
- The insurance coverage limits stated above are minimum insurance coverage requirements, not limits of Lessor’s liability. Notwithstanding the above-required insurance policies, Lessor shall be obligated for the full and total amount of any damage, injury, expense or loss.
- SAFETY
- Lessor shall be solely responsible for the safe conduct of all persons employed by Lessor and its subcontractors. Lessor shall comply with all applicable federal, state, and local health, safety and fire protection laws and regulations. Lessor shall also comply with Lessee's safety policies and procedures. Any failure by Lessor or any of its suppliers to comply with any such safety policies, procedures, laws or regulations shall constitute a material breach of this Contract. Under no circumstance shall compliance with Lessee's safety policies and procedures alone be considered complete satisfaction of the requirements of this subparagraph.
- Lessor shall complete the following prior to performance at Lessee’s facilities:
- Provide to Lessee's Safety Department the name, telephone number and title or position of the person who has the authority to correct any safety violations by Lessor during the performance of this Contract ("Lessor’s Safety Representative").
- Lessor's Safety Representative, together with equivalent representatives of Lessor’s subcontractors who are expected to perform at Lessee's facilities, shall meet with Lessee's Safety Manager or designee to review applicable safety policies and procedures.
- Provide to Lessee's Safety Department a copy of Lessor's written safety policies and procedures.
- Provide to Lessee's Safety Department a copy of all Material Safety Data Sheets ("MSDS") for all chemical compounds that Lessor anticipates using in performing this Contract at Lessee's facilities.
- Cause each of Lessor’s employees who will be in Lessee's facilities to complete a "Personal Protective Equipment" statement acknowledging their safety responsibilities.
- Lessor shall immediately notify Lessee's Safety Department, in writing, upon receiving notice of any inspection from either United States OSHA or California OSHA representatives of their work area at Lessee's facilities. In the event of such an inspection, Lessor shall permit Lessee's personnel to be present at any opening conference, the inspection, and any closing conference, and Lessor shall provide Lessee with copies of all correspondence, including citations, received from OSHA or Cal OSHA.
- If, in Lessee's sole opinion, Lessor fails to comply with this Safety paragraph, Lessee, may without prejudice to any other legal or contractual rights of Lessee, issue an order stopping all or part of Lessor’s performance. Lessor shall have no claim for extension of time or for compensation or damages by reason of or in connection with such stoppage.
- Lessor shall remove from Lessee's facilities any of Lessor’s employees immediately upon Lessee's request based upon (in Lessee's sole opinion) violation of Lessee's safety policies or procedures or violation of applicable federal, state or local safety laws or regulations.
- SECURITY
Lessor shall comply with Lessee's security policies and procedures regarding personnel administration, vehicle operations, and general security practices. Willful or repeated negligent noncompliance by Lessor with any such security policies or procedures shall constitute a material breach of this Contract.
- TREATMENT AT LESSEE'S MEDICAL FACILITIES
Lessee shall have no obligation to furnish medical treatment to Lessor's employees while such employees may be working in Lessee's facilities. In the event Lessee's Medical Department furnishes medical treatment to any such employee, Lessor shall defend, indemnify and hold harmless Lessee, its affiliated companies, and the directors, officers and employees of each of them, from and against any and all claims, demands or causes of action, by Lessor's employees or their representatives, heirs or assigns for costs or damages (including without limitation punitive damages and reasonable attorney fees) arising out of or in connection with medical treatment furnished by Lessee, including claims based upon the negligence of Lessee, and excluding only claims based on Lessee’s sole negligence or willful misconduct.
- USE OF LESSEE'S EQUIPMENT
Lessor shall not use, or permit any third party to use, any of Lessee's equipment, tools, devices, apparatus or property ("Lessee's Equipment") without Lessee's express, written consent. If Lessee so consents, Lessor shall ensure that only qualified, properly trained persons use Lessee's Equipment and that such persons obey all of Lessee's applicable use procedures and requirements and all applicable federal, state and local laws and regulations. If Lessee so consents, Lessee's Equipment is provided "as-is," with no warranty, express or implied, as to its merchantability, fitness for any particular purpose, current condition, or prior maintenance history. Lessor is responsible for all risk of loss of or damage to Lessee's Equipment used by Lessor.
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