Terms and Conditions
Global Ocean Design LLC
Standard Terms and Conditions
(Rev July 9, 2014)
1. Applicability
These Standard Terms and Conditions are incorporated by reference into any offer to sell equipment or services by Global Ocean Design LLC (hereinafter referred to as “Global Ocean Design LLC” or “Seller”). Such offer to sell is expressly conditioned upon the acceptance of these Terms and Conditions by the purchaser (hereinafter referred to as the “Buyer”) of such equipment or services. The Terms and Conditions of any sale of equipment or services under any agreement resulting from the acceptance by Buyer of such offer are expressly limited to these Terms and Conditions; and any additional or inconsistent terms and conditions on Buyer’s written expression of acceptance, purchase order, or any other document issued by Buyer, are rejected by Global Ocean Design LLC and shall not apply to such sale.
2. Acceptance of Offer
Buyer may accept Global Ocean Design LLC’s offer to sell equipment or services to which these Terms and Conditions are attached in any written form, including, but not limited to, telegraphic or facsimile communications, which specifically refer to Global Ocean Design LLC’s offer. Any such acceptance of Global Ocean Design LLC’s offer shall result in an agreement (hereinafter referred to as the “Agreement”) of sale of the equipment or services specified in the offer; and any such acceptance is subject to the provisions of Section 1 hereof.
3. Inspection and Tests
All Goods manufactured by Seller are subject to Seller’s standard inspection and quality assurance processes and, if applicable, acceptance testing at Seller’s facility. Any additional requirements mutually agreed by the Parties, including, without limitation, Buyer's source inspection or additional testing, shall be at Buyer's sole expense. If Buyer requires inspection by Buyer at Seller’s place of manufacture, such inspection shall not unreasonably interfere with Seller's normal operations. Seller shall give Buyer at least two (2) business days advance notice of availability of Goods for Buyer’s inspection. If Buyer fails to perform such inspection within three (3) business days after said notice is received, or such other period as agreed by Seller, Buyer’s inspection shall be deemed to have been waived by Buyer.
4. Packing and Packaging
All Goods shall be packed and packaged in accordance with Seller’s standard commercial packing and packaging methods. Any nonstandard or special packing or packaging requested by Buyer shall be at Buyer’s sole expense.
5. Delivery
A. Delivery of all equipment purchased pursuant to the Agreement shall be F.O.B. Global Ocean Design LLC plant in San Diego, unless different delivery terms are agreed upon by the applicable parties as a part of the Agreement.
B. Global Ocean Design LLC shall prepare all equipment for shipment and deliver it to a local common carrier specified by Buyer for shipment to such location as Buyer shall designate. Insurance for equipment, customs duties, exchange rates, and all manner of taxes and charges for items shipped to buyer shall be at buyer’s expense.
C. Delivery is ex works of the manufacturer (EXW according to Incoterms 2011. The place of manufacturing is our main plant in San Diego, California, USA.)
D. The Buyer shall be responsible for any back charges by the customs office.
E. Delivery schedules are only approximate unless a fixed delivery date or delivery period was expressly promised by us or mutually agreed upon. Delivery schedules are deemed to have been observed upon notice of readiness for dispatch if the goods cannot be shipped on time through no fault of our own.
F. Deadlines and set dates shall be extended by the period during which the Buyer fails to comply with its responsibilities and obligations towards us (in particular, the release of drawings, forms, samples, funding, etc.) or delays delivery in any other manner (in particular by requests for changes). Costs caused thereby shall be borne by the Buyer.
G. We shall be entitled to postpone and/or suspend our respective obligation to make delivery in the event of:
i. war or acts of God
ii. strike, lock-out
iii. any disruption of operations of any kind, or difficulties subsequently occurring in the procurement, shipment or transportation of the goods, unless these were caused due to willful misconduct or gross negligence by us, our corporate bodies or persons employed by us in the performance of our obligations entrusted with special management tasks
iv. failure to receive proper or timely supplies ourselves, for which we are not responsible.
Should the events described above greatly impede or render the delivery of goods or the performance of services impossible and if such hindrance is not temporary in nature, we shall be entitled to rescind the contract.
H. In the event of the Buyer’s failure to take receipt of the goods, we will place the goods in storage at the Buyer's risk and expense.
I. At the Buyer’s request, we will insure the goods at the Buyer’s expense against theft, breakage, transport, fire and water damage or any other insurable risks.
J. We shall be entitled to partial performance unless this is unacceptable to the Buyer.
K. In the event of our breach of duty, our liability for damages of any kind shall be governed exclusively by the provisions set forth in Clause 9 hereof.
6. Acceptance of Equipment
Buyer, or any user receiving shipment on behalf of Buyer, shall inspect all equipment immediately upon receipt. If Buyer does not notify Global Ocean Design LLC in writing within seven (7) working days of delivery of any defect, shortage, or other failure to conform to the terms of the Agreement, the equipment shipped shall be deemed to have fulfilled the terms of the Agreement and to have been accepted by Buyer as delivered.
7. Payments
Payment terms are cash on delivery for orders up to $5,000. Amounts over $5,000 require advance deposits of 50% minimum or as specified in the Agreement. Net thirty (30) day terms may be granted to established accounts at the discretion of Global Ocean Design LLC. Global Ocean Design LLC will charge Two percent interest (2.0%) per month (24 percent per annum) on all balances not paid within the designated terms. A seventy (70) percent cash deposit will be required on all custom or special orders.
8. Warranty
A. General Warranty: Global Ocean Design LLC warrants that all equipment sold pursuant to the Agreement is free from defects in material or workmanship at the time of delivery.
B. The Buyer is obligated to inspect the goods within seven (7) working days after receipt. Upon our request, the rejected goods must be returned to us postage prepaid. In the event of a justified notice of defect, we shall, at our discretion, either replace the defective goods or remedy the defect and reimburse the costs of the least expensive shipping method to and from the Buyers’ home office. After seven days of receipt, clause 6(C) is in force.
C. If Global Ocean Design LLC receives written notice of any subsequent defect within twelve (12) months of shipment, and if the defect is not the result of improper usage, service, maintenance, or installation by someone other than Global Ocean Design LLC or its authorized representative, and the equipment has not been damaged or abused after delivery nor altered or modified by anyone other than an authorized employee or representative of Global Ocean Design LLC, Global Ocean Design LLC shall replace or repair (at its sole option) the defective parts of equipment in accordance with the following:
(i) (1) Any such defective part or parts may be returned prepaid by Buyer to Global Ocean Design LLC’s plant (or to any other repair facility designated by Global Ocean Design LLC); (2) if Global Ocean Design LLC, in its sole discretion, determines upon examination that the part or parts returned contain a defect in material or workmanship covered by this warranty, Global Ocean Design LLC shall repair or replace the part or parts at its expense, return ship such system, and bill Buyer for the cost of transportation of the repaired or replaced parts, (3) If Global Ocean Design LLC determines upon examination that there is a defect in the part or parts returned, but the defect is not covered by this warranty, Global Ocean Design LLC shall notify Buyer of the cost incurred to diagnose the defect and of the estimated cost of correcting the defect and, if requested to do so by Buyer, will correct such defect at Buyer’s expense by repair or replacement, return ship such part or parts to Buyer, and bill Buyer for the cost of transportation, diagnosis, and repair or replacement, (4) If Buyer does not request Global Ocean Design LLC to repair or replace such defect, Global Ocean Design LLC shall return the part or parts to Buyer and bill Buyer for the cost of transportation and diagnosis.
(ii) Global Ocean Design LLC warrants that any repairs performed pursuant to this agreement shall be free from defects in material and workmanship for either a) the remainder of the original warranty period, or b) a period of ninety (90) days from the date of shipment. In accordance with the terms of (i) above, Global Ocean Design LLC shall correct such defect at its expense and return ship such parts and/or equipment to Buyer. Buyer shall be responsible for all transportation costs related to such repair as outlined in the Global Ocean Design LLC RMA policy.
(iii) In the event of defects in other manufacturer’s components, which we are not in a position to remedy due to conflicting license terms or other obstacles, we shall – at our choice – either assert warranty claims against the manufacturer or supplier of such components or assign such claims to the Buyer. Claims arising from these defects may be asserted against us only if the enforcement thereof in court has been unsuccessful or is futile (in particular due to insolvency). The period of limitation of the respective claims of the Buyer against us shall be suspended for the duration of the litigation.
(iv) In the event of rescission by the Buyer, the Buyer shall be liable for deterioration, loss and benefits it has failed to derive from the goods, not only from its obligation to exercise the care customarily exercised in its own affairs but also from any fault due to negligence or willful misconduct.
B. Consequential Damages: GLOBAL OCEAN DESIGN LLC SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED AS A RESULT OF ANY DEFECT IN ANY EQUIPMENT SOLD HEREUNDER, and Global Ocean Design LLC’s liability is specifically limited to its obligation described herein to repair or replace a defective part or parts covered by this warranty.
C. The warranty period for spare parts is ninety (90) days from the date of original shipment.
D. Exclusive Warranty: The warranty set forth herein is the only warranty, oral or written, made by Global Ocean Design LLC, and is in lieu of and replaces all other warranties, express or implied, including the warranty of merchant ability and the warranty of fitness for a particular purpose.
E. Inspection: Global Ocean Design LLC may inspect any of the equipment furnished hereunder at any time during the warranty period.
9. Liability
Notwithstanding any other provision of the Agreement, Global Ocean Design LLC shall not be liable for any loss, damage, or liability incurred by Buyer or by any user of the equipment, documentation (whether certified or not), or services furnished by Global Ocean Design LLC arising out of the use of such equipment, documentation, or services, whether due to the negligence of Global Ocean Design LLC or otherwise. Global Ocean Design LLC shall in no event be liable for incidental or consequential damages for any failure or delay in furnishing equipment, documentation, or services, or occasioned by the use, malfunction, or failure of any equipment, documentation, or service furnished by Global Ocean Design LLC. Global Ocean Design LLC liability for any defect or malfunction in any equipment or services rendered shall be limited exclusively to repair or replacement of equipment as provided by Section 6 herein.
10. Patents
Global Ocean Design LLC shall, at its own expense, defend any suits that may be instituted against the Buyer for alleged infringement of United States patents relating to equipment which Global Ocean Design LLC manufactures and which is sold pursuant to the Agreement, provided such alleged infringement consists only in the use of such equipment itself and not as a part of any combination with other devices and parts, and provided the Buyer gives Global Ocean Design LLC immediate notice in writing of any alleged infringement and of the institution of any such suit and permits Global Ocean Design LLC, through its counsel, to answer the allegation of infringement and to defend such suit, and provided the Buyer gives all information, assistance, and authority required to enable Global Ocean Design LLC to so answer and defend. In case of a final award of damages in any suit Global Ocean Design LLC defends pursuant to this Section 8, Global Ocean Design LLC will pay such award, provided, however, that Global Ocean Design LLC shall not be responsible for any settlement compromise made without its written consent.
11. Violation of third party rights
Where items to be delivered based on plans, drawings, models, or any other data provided by the Buyer and thereby violate third party rights, including, but not limited to, proprietary rights, the Buyer shall indemnify and hold us harmless from any and all such claims upon our first request.
12. Copyrights, intellectual property
A) Should the item delivered infringe upon any third party industrial property right or copyright, we shall, at our option and expense, either modify or exchange the item in such manner as to exclude the infringement of third party rights and, at the same time, maintain its agreed-upon function, or provide the Buyer with the right of use by way of a license agreement. Should this fail within a reasonable period of time, the Buyer shall be entitled to rescind the contract, reduce the purchase price or claim damages in accordance with Clauses 5 and 6 hereof.
B) The Buyer is hereby granted a non-exclusive and non-transferable right of use of any software and related documentation, including their updates for its internal use together with the products for which the programs are provided (any other rights in the programs and documentation, including any copies and updates thereof, shall be held by the Global Ocean Design LLC). The Buyer must ensure that these programs and documentation are not available to any third party without our prior written consent. Copies may generally not be made for purposes other than field team use, archiving and data back-up, or troubleshooting. The provision of source programs shall be subject to a separate written agreement. Should the original copies bear a copyright notice, such notice must be reproduced by the Buyer on all copies thereof. Unless otherwise agreed, the right of use shall be deemed granted upon each confirmation of order and delivery of the programs, documentation and updates.
13. Taxes
No provision has been made in the price under the Agreement for taxes, tariff, duties, or imposts of any kind. The amount of any and all present or future taxes or other charges by any government upon the production, shipment, installation, or sale of the equipment or services sold under the Agreement, including sales, use, occupation, or possessor taxes, or export or import tariffs or duties, or exchange rate fluctuations, and all other shipping surcharges, shall be added to the price and paid by the Buyer; or, in lieu thereof, the Buyer shall, prior to shipment, furnish Global Ocean Design LLC with tax-exemption certificates acceptable to the taxing authorities.
14. Proprietary Information
All information, written or oral, provided by Global Ocean Design LLC to Buyer relating to the equipment sold or services furnished pursuant to the Agreement is proprietary to Global Ocean Design LLC whether so marked or not, and shall not be reproduced or duplicated by Buyer without the prior written consent of Global Ocean Design LLC. Buyer shall prevent the disclosure of any such information to any third party, and shall disclose such information only to those employees of Buyer whose function necessitates their knowledge of such information.
15. Governing Law
The Agreement is governed in its interpretation, performance, and enforcement by the laws of California.
16. Force Majeure
Any delay by Global Ocean Design LLC in furnishing equipment or services pursuant to the Agreement or in performing any of its obligations there under shall be excused and shall not allow the Buyer to terminate the Agreement, nor to delay payment or performance, not to take any other contractual action, including imposition of liquidated or actual damages, if such failure to perform arises out of causes beyond the control of Global Ocean Design LLC. Such causes include, but are not limited to, acts of God or of the public enemy, acts of any foreign or domestic government body in either the sovereign or contractual capacity, war, fires, earthquakes, floods, epidemics, labor disturbances, strikes, freight embargoes, severe weather, mobilization or military call-up, confiscation, revolt or riot, or delays or defaults of subcontractors. In the event of a delay as described in this Section 12, an appropriate adjustment of the delivery schedule set forth in the Agreement shall be made. In the event the delay described continues for a period of six (6) months or more, Global Ocean Design LLC may terminate this Agreement without further liability to Global Ocean Design LLC.
17. Installation
Unless otherwise provided in this Agreement, installation of any equipment purchased hereunder shall be the responsibility of Buyer. However, Global Ocean Design LLC may, on request, provide a qualified engineer to supervise the assembly, installation, and final testing or adjustment of such equipment. All time spent on such work, and in transit to and from such work, shall be provided at Global Ocean Design LLC’s then daily rates in the base area from which such Global Ocean Design LLC engineer operates. Buyer shall also pay for all expenses of such engineer, including transportation, room, board, and other travel expenses, as well as consumable materials used during the course of installation which are outside the scope of contracted deliverables. Such materials shall be invoiced at cost plus twenty-five (25) percent.
18. Field Service
Unless otherwise agreed in writing, Global Ocean Design LLC may provide field service to Buyer under the following terms:
A. Rates quoted are based on individual days.
B. Travel time is charged at the individual day rate.
C. All field service time is computed “portal to portal”.
D. All related travel and expenses are billed at cost plus twenty-five (25) percent. Meals and incidentals are invoiced on a per diem basis at the current U.S Federal published rates for domestic, international and underway travel.
E. Airlines tickets requiring greater than eight (8) hours travel time are booked in business class or as required to accommodate Buyer’s schedule. Global Ocean Design LLC will make any and all travel arrangements. However, Buyer may, at its option, make travel and accommodation arrangements and pay those costs directly, outside of any agreement with Global Ocean Design LLC.
F. Consumable materials used during the course of field service performance, which are outside the scope of contracted deliverables, shall be invoiced at cost plus twenty-five (25) percent.
G. Field service charges are invoiced on a weekly basis, with travel and expenses invoiced as soon as data is available.
H. Daily Rates: Field Engineer – USD $1,850/Day based on a maximum 10-hour day.
I. Global Ocean Design LLC does not guarantee the availability of field service personnel on demand. However, every reasonable effort is made to accommodate customer’s schedule and requirements.
J. The Global Ocean Design LLC Field engineer may decide to not participate in an operation he deems, in his sole professional judgment, to be unsafe. Ships of operation shall have required U.S. Coast Guard inspections and functioning safety equipment.
19. Buyer’s Default
In the event Buyer fails to perform any of its obligations under the Agreement, or advises Global Ocean Design LLC of its intention not to perform any of such obligations, or otherwise appears unable to so perform, Global Ocean Design LLC may give Buyer written notice of default. If, within ten (10) days of receipt of such notice, Buyer has not corrected such failure to perform or has not otherwise given Global Ocean Design LLC adequate assurance of performance, Global Ocean Design LLC may, in its sole discretion, declare the Agreement terminated, stop all further performance, and elect either of the following remedies:
A. Hold Buyer liable for (i) all costs committed or incurred by Global Ocean Design LLC up to the date of termination, (ii) all costs incurred by Global Ocean Design LLC in connection with or as a result of such termination, (iii) the profit which Global Ocean Design LLC would have realized on completion of performance (such profit shall be calculated from actual costs incurred plus Global Ocean Design LLC’s estimated cost to complete its performance of the Agreement; if such computation results in a projected loss, zero profit shall be assumed and no reduction of the sums set forth in (i), (ii), and (iii) shall be made), and (iv) all fees and expenses, including reasonable attorney’s fees, incurred by Global Ocean Design LLC in the collection of this amount. Buyer, upon payment of the assessments set forth above, shall be entitled to possession of any hardware items which are complete on the date of such termination. All incomplete hardware and all data and software shall remain the property of Global Ocean Design LLC.
B. Retain all equipment, data and software manufactured as of the date of termination. In such event, Global Ocean Design LLC’s damages will be difficult or impossible to determine, and in lieu of any actual damages, Buyer shall pay to Global Ocean Design LLC, as liquidated damages and not as a penalty, a sum equal to thirty-five percent (35%) of the total contract price, plus any and all fees and expenses, including attorney’s fees, incurred by Global Ocean Design LLC in the collection of such sum.
Nothing in the Agreement or in this Section 15 shall be construed as limiting Global Ocean Design LLC’s remedies for breach, and Global Ocean Design LLC may, in addition to the remedies set forth in this Section 15, exercise any and all rights and pursue any and all remedies available under applicable law.
20. Assignment
Buyer shall not assign the Agreement or any rights under the Agreement without the prior written consent of Global Ocean Design LLC, and no purported assignment by Buyer shall be binding on Global Ocean Design LLC without such consent.
21. Publicity
Buyer shall not make or authorize any news release, advertisement, or other disclosure using Global Ocean Design LLC’s name without Global Ocean Design LLC’s prior written approval.
22. Separability: If any portion of the Agreement is found by any court or other judicial or administrative authority to be unenforceable or otherwise void, the remaining provisions of the Agreement shall not be affected thereby, and shall remain in full force and effect.
23. Waiver
The failure of Global Ocean Design LLC to insist on the performance of any obligation of Buyer hereunder shall not be construed as a waiver by Global Ocean Design LLC of such obligation or any other obligation of Buyer hereunder, and the same shall remain an obligation of Buyer.
24. Covenant Not to Solicit Employees for Employment
Under no circumstances, shall the Buyer attempt to solicit for employment, any employee of the Seller, on a part-time or full-time basis. Seller’s employees have been instructed to immediately report any attempt of such solicitation by the Buyer. This covenant not to solicit employees for employment shall be in effect for a period of 180 (one hundred eighty) days following completion of said contract.
25. Place of fulfillment, jurisdiction, applicable law
A) Should any dispute arise, the parties shall endeavor to settle it amicably.
B) The place of payment by the Buyer shall be San Diego, California, USA, the place of performance of our obligations shall be the location of our warehouse.
C) The State of California, USA, shall be the agreed-upon place of jurisdiction for any and all disputes arising under and in connection with this contract. This shall also apply to summary action based on unpaid checks and summary bill enforcement procedures.
D) Any legal relationship between the Buyer and us shall be governed exclusively by the law of the State of California, USA, without giving effect to conflict of law provisions and uniform laws regarding international contracts on the sale of movable property or any other international treaties.
E) The Buyer takes notice that we store data arising under the contractual relationship in accordance with the U.S. Federal Data Protection Act for the purpose of data processing and reserve the right to transfer such data to third parties (e.g. insurance companies) if required for the performance of the contract.
26. Glass Sphere Drilling
Global Ocean Design and its subsidiary partners are not responsible for damage or breakage of customer supplied glass spheres. We have created special tooling to securely hold the spheres, protect the lapped glass surfaces, and drilled and polished many parts already. We exert every means possible to safeguard the material, but glass can be unpredictable, especially if it has been previously used, or handled roughly on deck.
27. Complete Agreement
The Agreement shall constitute the entire understanding of the applicable parties as to the subject matter thereof and replaces and supersedes all prior or contemporaneous agreements, written or oral, as to such subject matter. No addition to or modification of the Agreement or of these Terms and Conditions shall be binding upon Global Ocean Design LLC unless in writing and signed by an authorized representative of Global Ocean Design LLC.
28. Headings
The headings to the foregoing paragraphs are for convenience or reference only and do not form a part of the Agreement and shall not in any way affect the interpretation thereof.
Standard Terms and Conditions
(Rev July 9, 2014)
1. Applicability
These Standard Terms and Conditions are incorporated by reference into any offer to sell equipment or services by Global Ocean Design LLC (hereinafter referred to as “Global Ocean Design LLC” or “Seller”). Such offer to sell is expressly conditioned upon the acceptance of these Terms and Conditions by the purchaser (hereinafter referred to as the “Buyer”) of such equipment or services. The Terms and Conditions of any sale of equipment or services under any agreement resulting from the acceptance by Buyer of such offer are expressly limited to these Terms and Conditions; and any additional or inconsistent terms and conditions on Buyer’s written expression of acceptance, purchase order, or any other document issued by Buyer, are rejected by Global Ocean Design LLC and shall not apply to such sale.
2. Acceptance of Offer
Buyer may accept Global Ocean Design LLC’s offer to sell equipment or services to which these Terms and Conditions are attached in any written form, including, but not limited to, telegraphic or facsimile communications, which specifically refer to Global Ocean Design LLC’s offer. Any such acceptance of Global Ocean Design LLC’s offer shall result in an agreement (hereinafter referred to as the “Agreement”) of sale of the equipment or services specified in the offer; and any such acceptance is subject to the provisions of Section 1 hereof.
3. Inspection and Tests
All Goods manufactured by Seller are subject to Seller’s standard inspection and quality assurance processes and, if applicable, acceptance testing at Seller’s facility. Any additional requirements mutually agreed by the Parties, including, without limitation, Buyer's source inspection or additional testing, shall be at Buyer's sole expense. If Buyer requires inspection by Buyer at Seller’s place of manufacture, such inspection shall not unreasonably interfere with Seller's normal operations. Seller shall give Buyer at least two (2) business days advance notice of availability of Goods for Buyer’s inspection. If Buyer fails to perform such inspection within three (3) business days after said notice is received, or such other period as agreed by Seller, Buyer’s inspection shall be deemed to have been waived by Buyer.
4. Packing and Packaging
All Goods shall be packed and packaged in accordance with Seller’s standard commercial packing and packaging methods. Any nonstandard or special packing or packaging requested by Buyer shall be at Buyer’s sole expense.
5. Delivery
A. Delivery of all equipment purchased pursuant to the Agreement shall be F.O.B. Global Ocean Design LLC plant in San Diego, unless different delivery terms are agreed upon by the applicable parties as a part of the Agreement.
B. Global Ocean Design LLC shall prepare all equipment for shipment and deliver it to a local common carrier specified by Buyer for shipment to such location as Buyer shall designate. Insurance for equipment, customs duties, exchange rates, and all manner of taxes and charges for items shipped to buyer shall be at buyer’s expense.
C. Delivery is ex works of the manufacturer (EXW according to Incoterms 2011. The place of manufacturing is our main plant in San Diego, California, USA.)
D. The Buyer shall be responsible for any back charges by the customs office.
E. Delivery schedules are only approximate unless a fixed delivery date or delivery period was expressly promised by us or mutually agreed upon. Delivery schedules are deemed to have been observed upon notice of readiness for dispatch if the goods cannot be shipped on time through no fault of our own.
F. Deadlines and set dates shall be extended by the period during which the Buyer fails to comply with its responsibilities and obligations towards us (in particular, the release of drawings, forms, samples, funding, etc.) or delays delivery in any other manner (in particular by requests for changes). Costs caused thereby shall be borne by the Buyer.
G. We shall be entitled to postpone and/or suspend our respective obligation to make delivery in the event of:
i. war or acts of God
ii. strike, lock-out
iii. any disruption of operations of any kind, or difficulties subsequently occurring in the procurement, shipment or transportation of the goods, unless these were caused due to willful misconduct or gross negligence by us, our corporate bodies or persons employed by us in the performance of our obligations entrusted with special management tasks
iv. failure to receive proper or timely supplies ourselves, for which we are not responsible.
Should the events described above greatly impede or render the delivery of goods or the performance of services impossible and if such hindrance is not temporary in nature, we shall be entitled to rescind the contract.
H. In the event of the Buyer’s failure to take receipt of the goods, we will place the goods in storage at the Buyer's risk and expense.
I. At the Buyer’s request, we will insure the goods at the Buyer’s expense against theft, breakage, transport, fire and water damage or any other insurable risks.
J. We shall be entitled to partial performance unless this is unacceptable to the Buyer.
K. In the event of our breach of duty, our liability for damages of any kind shall be governed exclusively by the provisions set forth in Clause 9 hereof.
6. Acceptance of Equipment
Buyer, or any user receiving shipment on behalf of Buyer, shall inspect all equipment immediately upon receipt. If Buyer does not notify Global Ocean Design LLC in writing within seven (7) working days of delivery of any defect, shortage, or other failure to conform to the terms of the Agreement, the equipment shipped shall be deemed to have fulfilled the terms of the Agreement and to have been accepted by Buyer as delivered.
7. Payments
Payment terms are cash on delivery for orders up to $5,000. Amounts over $5,000 require advance deposits of 50% minimum or as specified in the Agreement. Net thirty (30) day terms may be granted to established accounts at the discretion of Global Ocean Design LLC. Global Ocean Design LLC will charge Two percent interest (2.0%) per month (24 percent per annum) on all balances not paid within the designated terms. A seventy (70) percent cash deposit will be required on all custom or special orders.
8. Warranty
A. General Warranty: Global Ocean Design LLC warrants that all equipment sold pursuant to the Agreement is free from defects in material or workmanship at the time of delivery.
B. The Buyer is obligated to inspect the goods within seven (7) working days after receipt. Upon our request, the rejected goods must be returned to us postage prepaid. In the event of a justified notice of defect, we shall, at our discretion, either replace the defective goods or remedy the defect and reimburse the costs of the least expensive shipping method to and from the Buyers’ home office. After seven days of receipt, clause 6(C) is in force.
C. If Global Ocean Design LLC receives written notice of any subsequent defect within twelve (12) months of shipment, and if the defect is not the result of improper usage, service, maintenance, or installation by someone other than Global Ocean Design LLC or its authorized representative, and the equipment has not been damaged or abused after delivery nor altered or modified by anyone other than an authorized employee or representative of Global Ocean Design LLC, Global Ocean Design LLC shall replace or repair (at its sole option) the defective parts of equipment in accordance with the following:
(i) (1) Any such defective part or parts may be returned prepaid by Buyer to Global Ocean Design LLC’s plant (or to any other repair facility designated by Global Ocean Design LLC); (2) if Global Ocean Design LLC, in its sole discretion, determines upon examination that the part or parts returned contain a defect in material or workmanship covered by this warranty, Global Ocean Design LLC shall repair or replace the part or parts at its expense, return ship such system, and bill Buyer for the cost of transportation of the repaired or replaced parts, (3) If Global Ocean Design LLC determines upon examination that there is a defect in the part or parts returned, but the defect is not covered by this warranty, Global Ocean Design LLC shall notify Buyer of the cost incurred to diagnose the defect and of the estimated cost of correcting the defect and, if requested to do so by Buyer, will correct such defect at Buyer’s expense by repair or replacement, return ship such part or parts to Buyer, and bill Buyer for the cost of transportation, diagnosis, and repair or replacement, (4) If Buyer does not request Global Ocean Design LLC to repair or replace such defect, Global Ocean Design LLC shall return the part or parts to Buyer and bill Buyer for the cost of transportation and diagnosis.
(ii) Global Ocean Design LLC warrants that any repairs performed pursuant to this agreement shall be free from defects in material and workmanship for either a) the remainder of the original warranty period, or b) a period of ninety (90) days from the date of shipment. In accordance with the terms of (i) above, Global Ocean Design LLC shall correct such defect at its expense and return ship such parts and/or equipment to Buyer. Buyer shall be responsible for all transportation costs related to such repair as outlined in the Global Ocean Design LLC RMA policy.
(iii) In the event of defects in other manufacturer’s components, which we are not in a position to remedy due to conflicting license terms or other obstacles, we shall – at our choice – either assert warranty claims against the manufacturer or supplier of such components or assign such claims to the Buyer. Claims arising from these defects may be asserted against us only if the enforcement thereof in court has been unsuccessful or is futile (in particular due to insolvency). The period of limitation of the respective claims of the Buyer against us shall be suspended for the duration of the litigation.
(iv) In the event of rescission by the Buyer, the Buyer shall be liable for deterioration, loss and benefits it has failed to derive from the goods, not only from its obligation to exercise the care customarily exercised in its own affairs but also from any fault due to negligence or willful misconduct.
B. Consequential Damages: GLOBAL OCEAN DESIGN LLC SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED AS A RESULT OF ANY DEFECT IN ANY EQUIPMENT SOLD HEREUNDER, and Global Ocean Design LLC’s liability is specifically limited to its obligation described herein to repair or replace a defective part or parts covered by this warranty.
C. The warranty period for spare parts is ninety (90) days from the date of original shipment.
D. Exclusive Warranty: The warranty set forth herein is the only warranty, oral or written, made by Global Ocean Design LLC, and is in lieu of and replaces all other warranties, express or implied, including the warranty of merchant ability and the warranty of fitness for a particular purpose.
E. Inspection: Global Ocean Design LLC may inspect any of the equipment furnished hereunder at any time during the warranty period.
9. Liability
Notwithstanding any other provision of the Agreement, Global Ocean Design LLC shall not be liable for any loss, damage, or liability incurred by Buyer or by any user of the equipment, documentation (whether certified or not), or services furnished by Global Ocean Design LLC arising out of the use of such equipment, documentation, or services, whether due to the negligence of Global Ocean Design LLC or otherwise. Global Ocean Design LLC shall in no event be liable for incidental or consequential damages for any failure or delay in furnishing equipment, documentation, or services, or occasioned by the use, malfunction, or failure of any equipment, documentation, or service furnished by Global Ocean Design LLC. Global Ocean Design LLC liability for any defect or malfunction in any equipment or services rendered shall be limited exclusively to repair or replacement of equipment as provided by Section 6 herein.
10. Patents
Global Ocean Design LLC shall, at its own expense, defend any suits that may be instituted against the Buyer for alleged infringement of United States patents relating to equipment which Global Ocean Design LLC manufactures and which is sold pursuant to the Agreement, provided such alleged infringement consists only in the use of such equipment itself and not as a part of any combination with other devices and parts, and provided the Buyer gives Global Ocean Design LLC immediate notice in writing of any alleged infringement and of the institution of any such suit and permits Global Ocean Design LLC, through its counsel, to answer the allegation of infringement and to defend such suit, and provided the Buyer gives all information, assistance, and authority required to enable Global Ocean Design LLC to so answer and defend. In case of a final award of damages in any suit Global Ocean Design LLC defends pursuant to this Section 8, Global Ocean Design LLC will pay such award, provided, however, that Global Ocean Design LLC shall not be responsible for any settlement compromise made without its written consent.
11. Violation of third party rights
Where items to be delivered based on plans, drawings, models, or any other data provided by the Buyer and thereby violate third party rights, including, but not limited to, proprietary rights, the Buyer shall indemnify and hold us harmless from any and all such claims upon our first request.
12. Copyrights, intellectual property
A) Should the item delivered infringe upon any third party industrial property right or copyright, we shall, at our option and expense, either modify or exchange the item in such manner as to exclude the infringement of third party rights and, at the same time, maintain its agreed-upon function, or provide the Buyer with the right of use by way of a license agreement. Should this fail within a reasonable period of time, the Buyer shall be entitled to rescind the contract, reduce the purchase price or claim damages in accordance with Clauses 5 and 6 hereof.
B) The Buyer is hereby granted a non-exclusive and non-transferable right of use of any software and related documentation, including their updates for its internal use together with the products for which the programs are provided (any other rights in the programs and documentation, including any copies and updates thereof, shall be held by the Global Ocean Design LLC). The Buyer must ensure that these programs and documentation are not available to any third party without our prior written consent. Copies may generally not be made for purposes other than field team use, archiving and data back-up, or troubleshooting. The provision of source programs shall be subject to a separate written agreement. Should the original copies bear a copyright notice, such notice must be reproduced by the Buyer on all copies thereof. Unless otherwise agreed, the right of use shall be deemed granted upon each confirmation of order and delivery of the programs, documentation and updates.
13. Taxes
No provision has been made in the price under the Agreement for taxes, tariff, duties, or imposts of any kind. The amount of any and all present or future taxes or other charges by any government upon the production, shipment, installation, or sale of the equipment or services sold under the Agreement, including sales, use, occupation, or possessor taxes, or export or import tariffs or duties, or exchange rate fluctuations, and all other shipping surcharges, shall be added to the price and paid by the Buyer; or, in lieu thereof, the Buyer shall, prior to shipment, furnish Global Ocean Design LLC with tax-exemption certificates acceptable to the taxing authorities.
14. Proprietary Information
All information, written or oral, provided by Global Ocean Design LLC to Buyer relating to the equipment sold or services furnished pursuant to the Agreement is proprietary to Global Ocean Design LLC whether so marked or not, and shall not be reproduced or duplicated by Buyer without the prior written consent of Global Ocean Design LLC. Buyer shall prevent the disclosure of any such information to any third party, and shall disclose such information only to those employees of Buyer whose function necessitates their knowledge of such information.
15. Governing Law
The Agreement is governed in its interpretation, performance, and enforcement by the laws of California.
16. Force Majeure
Any delay by Global Ocean Design LLC in furnishing equipment or services pursuant to the Agreement or in performing any of its obligations there under shall be excused and shall not allow the Buyer to terminate the Agreement, nor to delay payment or performance, not to take any other contractual action, including imposition of liquidated or actual damages, if such failure to perform arises out of causes beyond the control of Global Ocean Design LLC. Such causes include, but are not limited to, acts of God or of the public enemy, acts of any foreign or domestic government body in either the sovereign or contractual capacity, war, fires, earthquakes, floods, epidemics, labor disturbances, strikes, freight embargoes, severe weather, mobilization or military call-up, confiscation, revolt or riot, or delays or defaults of subcontractors. In the event of a delay as described in this Section 12, an appropriate adjustment of the delivery schedule set forth in the Agreement shall be made. In the event the delay described continues for a period of six (6) months or more, Global Ocean Design LLC may terminate this Agreement without further liability to Global Ocean Design LLC.
17. Installation
Unless otherwise provided in this Agreement, installation of any equipment purchased hereunder shall be the responsibility of Buyer. However, Global Ocean Design LLC may, on request, provide a qualified engineer to supervise the assembly, installation, and final testing or adjustment of such equipment. All time spent on such work, and in transit to and from such work, shall be provided at Global Ocean Design LLC’s then daily rates in the base area from which such Global Ocean Design LLC engineer operates. Buyer shall also pay for all expenses of such engineer, including transportation, room, board, and other travel expenses, as well as consumable materials used during the course of installation which are outside the scope of contracted deliverables. Such materials shall be invoiced at cost plus twenty-five (25) percent.
18. Field Service
Unless otherwise agreed in writing, Global Ocean Design LLC may provide field service to Buyer under the following terms:
A. Rates quoted are based on individual days.
B. Travel time is charged at the individual day rate.
C. All field service time is computed “portal to portal”.
D. All related travel and expenses are billed at cost plus twenty-five (25) percent. Meals and incidentals are invoiced on a per diem basis at the current U.S Federal published rates for domestic, international and underway travel.
E. Airlines tickets requiring greater than eight (8) hours travel time are booked in business class or as required to accommodate Buyer’s schedule. Global Ocean Design LLC will make any and all travel arrangements. However, Buyer may, at its option, make travel and accommodation arrangements and pay those costs directly, outside of any agreement with Global Ocean Design LLC.
F. Consumable materials used during the course of field service performance, which are outside the scope of contracted deliverables, shall be invoiced at cost plus twenty-five (25) percent.
G. Field service charges are invoiced on a weekly basis, with travel and expenses invoiced as soon as data is available.
H. Daily Rates: Field Engineer – USD $1,850/Day based on a maximum 10-hour day.
I. Global Ocean Design LLC does not guarantee the availability of field service personnel on demand. However, every reasonable effort is made to accommodate customer’s schedule and requirements.
J. The Global Ocean Design LLC Field engineer may decide to not participate in an operation he deems, in his sole professional judgment, to be unsafe. Ships of operation shall have required U.S. Coast Guard inspections and functioning safety equipment.
19. Buyer’s Default
In the event Buyer fails to perform any of its obligations under the Agreement, or advises Global Ocean Design LLC of its intention not to perform any of such obligations, or otherwise appears unable to so perform, Global Ocean Design LLC may give Buyer written notice of default. If, within ten (10) days of receipt of such notice, Buyer has not corrected such failure to perform or has not otherwise given Global Ocean Design LLC adequate assurance of performance, Global Ocean Design LLC may, in its sole discretion, declare the Agreement terminated, stop all further performance, and elect either of the following remedies:
A. Hold Buyer liable for (i) all costs committed or incurred by Global Ocean Design LLC up to the date of termination, (ii) all costs incurred by Global Ocean Design LLC in connection with or as a result of such termination, (iii) the profit which Global Ocean Design LLC would have realized on completion of performance (such profit shall be calculated from actual costs incurred plus Global Ocean Design LLC’s estimated cost to complete its performance of the Agreement; if such computation results in a projected loss, zero profit shall be assumed and no reduction of the sums set forth in (i), (ii), and (iii) shall be made), and (iv) all fees and expenses, including reasonable attorney’s fees, incurred by Global Ocean Design LLC in the collection of this amount. Buyer, upon payment of the assessments set forth above, shall be entitled to possession of any hardware items which are complete on the date of such termination. All incomplete hardware and all data and software shall remain the property of Global Ocean Design LLC.
B. Retain all equipment, data and software manufactured as of the date of termination. In such event, Global Ocean Design LLC’s damages will be difficult or impossible to determine, and in lieu of any actual damages, Buyer shall pay to Global Ocean Design LLC, as liquidated damages and not as a penalty, a sum equal to thirty-five percent (35%) of the total contract price, plus any and all fees and expenses, including attorney’s fees, incurred by Global Ocean Design LLC in the collection of such sum.
Nothing in the Agreement or in this Section 15 shall be construed as limiting Global Ocean Design LLC’s remedies for breach, and Global Ocean Design LLC may, in addition to the remedies set forth in this Section 15, exercise any and all rights and pursue any and all remedies available under applicable law.
20. Assignment
Buyer shall not assign the Agreement or any rights under the Agreement without the prior written consent of Global Ocean Design LLC, and no purported assignment by Buyer shall be binding on Global Ocean Design LLC without such consent.
21. Publicity
Buyer shall not make or authorize any news release, advertisement, or other disclosure using Global Ocean Design LLC’s name without Global Ocean Design LLC’s prior written approval.
22. Separability: If any portion of the Agreement is found by any court or other judicial or administrative authority to be unenforceable or otherwise void, the remaining provisions of the Agreement shall not be affected thereby, and shall remain in full force and effect.
23. Waiver
The failure of Global Ocean Design LLC to insist on the performance of any obligation of Buyer hereunder shall not be construed as a waiver by Global Ocean Design LLC of such obligation or any other obligation of Buyer hereunder, and the same shall remain an obligation of Buyer.
24. Covenant Not to Solicit Employees for Employment
Under no circumstances, shall the Buyer attempt to solicit for employment, any employee of the Seller, on a part-time or full-time basis. Seller’s employees have been instructed to immediately report any attempt of such solicitation by the Buyer. This covenant not to solicit employees for employment shall be in effect for a period of 180 (one hundred eighty) days following completion of said contract.
25. Place of fulfillment, jurisdiction, applicable law
A) Should any dispute arise, the parties shall endeavor to settle it amicably.
B) The place of payment by the Buyer shall be San Diego, California, USA, the place of performance of our obligations shall be the location of our warehouse.
C) The State of California, USA, shall be the agreed-upon place of jurisdiction for any and all disputes arising under and in connection with this contract. This shall also apply to summary action based on unpaid checks and summary bill enforcement procedures.
D) Any legal relationship between the Buyer and us shall be governed exclusively by the law of the State of California, USA, without giving effect to conflict of law provisions and uniform laws regarding international contracts on the sale of movable property or any other international treaties.
E) The Buyer takes notice that we store data arising under the contractual relationship in accordance with the U.S. Federal Data Protection Act for the purpose of data processing and reserve the right to transfer such data to third parties (e.g. insurance companies) if required for the performance of the contract.
26. Glass Sphere Drilling
Global Ocean Design and its subsidiary partners are not responsible for damage or breakage of customer supplied glass spheres. We have created special tooling to securely hold the spheres, protect the lapped glass surfaces, and drilled and polished many parts already. We exert every means possible to safeguard the material, but glass can be unpredictable, especially if it has been previously used, or handled roughly on deck.
27. Complete Agreement
The Agreement shall constitute the entire understanding of the applicable parties as to the subject matter thereof and replaces and supersedes all prior or contemporaneous agreements, written or oral, as to such subject matter. No addition to or modification of the Agreement or of these Terms and Conditions shall be binding upon Global Ocean Design LLC unless in writing and signed by an authorized representative of Global Ocean Design LLC.
28. Headings
The headings to the foregoing paragraphs are for convenience or reference only and do not form a part of the Agreement and shall not in any way affect the interpretation thereof.
