Terms and Service

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Professional Marine Services, Inc.
Standard Terms and Conditions of Service

 

These Standard Terms and Conditions of Service (“Terms”) apply to all quotations, acknowledgments, and/or invoices of Professional Marine Services, Inc. (“PMSI”) and to all related purchase orders, order releases, scheduling agreements and/or similar documents received by PMSI for the purchase of “services”, as hereafter defined (“Services”), and to all products (if any) sold by PMSI.  These terms also apply to all agreements pertaining to Services provided by PMSI to Buyer however made or documented whether verbal, written, electronic, by purchase order, special agreement or otherwise (“Agreements”). Orders accepted are accepted only at PMSI’s offices in Tulsa County, Oklahoma, by and through PMSI’s corporate President.

PMSI’S QUOTATIONS, SALES AND AGREEMENTS ARE EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO THE TERMS CONTAINED HEREIN, WHICH REPRESENT THE SOLE AND EXCLUSIVE TERMS AND CONDITIONS UPON WHICH PMSI OFFERS OR AGREES TO PROVIDE ITS SERVICES (AND SELL PRODUCTS, IF ANY, AS AN INCIDENT TO PROVIDING ITS SERVICES) TO THE PURCHASER OF ITS SERVICES OR PRODUCTS (“BUYER”).  PMSI OBJECTS TO AND REJECTS ANY TERMS PROPOSED BY BUYER WHETHER VERBAL OR IN WRITING (INCLUDING WITHOUT LIMITATION, “HANDWRITTEN IN”), REGARDLESS OF WHETHER PROPOSED BEFORE OR AFTER THIS DOCUMENT. ANY QUOTATIONS, ACKNOWLEDGEMENTS OR OTHER DOCUMENTS, MATERIALS OR ANCILLARY DOCUMENTS SUBMITTED TO BUYER BY PMSI ELECTRONICALLY VIA BUYER’S WEBSITE OR BUYER’S ELECTRONICALLY PROCESSED COMMUNICATIONS, ARE SO SUBMITTED FOR THE BUYER’S CONVENIENCE AND ANY ELECTRONIC ACCEPTANCE OR “CLICKWRAP” TYPE PROCESS AS PART OF THAT COMMUNICATION IS SPECIFICALLY REJECTED BY PMSI. BUYER AGREES TO THAT REJECTION BY PMSI IF IT CONTINUES WITH THE TRANSACTION UNLESS BUYER SPECIFICALLY SEEKS AND OBTAINS PMSI’S WRITTEN CONSENT TO SUCH PROPOSED CLICKWRAP TERMS IN EXPRESS COMMUNICATIONS AND CONSENT BY PMSI OUTSIDE THE BUYER’S ELECTRONICALLY PROCESSED COMMUNICATIONS, AND SIGNED BY PMSI’S PRESIDENT.

For purposes of the transaction in the Agreement these Terms shall not be amended, modified or rescinded, and no amendment, modification or rescission of the Terms set forth herein will be binding upon PMSI, unless such change is agreed to in writing, makes express reference to amending these Terms, and is signed by the President of PMSI.

  1. Services.  “Services” include all actions reasonably deemed by PMSI to be necessary or appropriate to accomplish its contracted goals, which Services could include but are not limited to:
  • Liquid Cargo Inspections,
  • Draft Surveys – Dry Bulk Cargo,
  • Break Bulk Cargo Inspections,
  • Survey of Damaged Cargo,
  • Container Damage Surveys,
  • Stowage and Stuffing Surveys, and
  • On/Off Charter Surveys

“Services” also, as used herein, shall include information, documents, reports and certificates developed by PMSI in the course of providing the Services hereunder.  Buyer shall also pay PMSI for the cost of any equipment or materials PMSI uses in the performance of the Services, at PMSI’s cost, plus a reasonable mark up (“E&M Cost”), at PMSI’s option.  PMSI does not, by performing Services hereunder, assume, abridge or undertake to discharge any duty or responsibility by the Buyer or any other person or entity.  PMSI undertakes to perform only the Services agreed to between PMSI and Buyer.  The Services are for the sole and exclusive benefit of Buyer, and not for any third party.  Buyer acknowledges and agrees that it has provided all material information necessary to enable PMSI to perform the requested Services, and if PMSI requests additional information during the course of its Services so as to perform its Services as set forth herein, Buyer shall diligently provide such additional information at Buyer’s sole cost and expense.  Buyer represents that it has all permits necessary to enable PMSI to perform its Services.  Buyer acknowledges and agrees that it shall obtain for PMSI all necessary access to the premises where the Services are to be performed.  Buyer acknowledges and agrees that it is at all times responsible for the safety, security, care, custody and control of the sampling and inspection site.  Buyer is responsible for the safety and security of the conditions in and around the site and for advising PMSI of the same, including but not limited to any known hazards, actual or potential, and of any information required to enable PMSI to perform the Services safely, in a good and workmanlike manner, and in a manner consistent with government standards and industry protocols.

  1. Price and Payment.  For the Services performed pursuant to these Terms, Buyer will pay PMSI the price as agreed upon in the PMSI’s price schedule then in effect, plus the E&M Cost, receipt of which is acknowledged by Buyer and, in the absence of a price schedule, the amount quoted by PMSI.  PMSI retains the right to amend its price schedule at any time and from time to time.  In the event that any additional reasonable and necessary expenses arise as a result of the performance of  Services, PMSI will inform Buyer of the additional expenses in advance and Buyer shall pay same.  Subject to the last sentence of this paragraph, the full price will be billed upon completion of the Services.  Regardless of other sources of payment, Buyer shall be responsible for the full payment of all fees, expenses, reimbursements and taxes set forth herein or otherwise charged or assessed by any third party, including but not limited to governmental or regulatory authorities.  Invoices will specify the nature of the Services performed and the amounts due.  All invoices, unless  otherwise provided specifically on an invoice, are due within thirty (30) days following receipt by Buyer.  Buyer shall pay PMSI the amount shown on each invoice at the place and in the manner specified by PMSI on the invoice.  Payments that are not timely received are subject to late charges at the higher of 18% per year or the maximum rate allowed by law, as well as PMSI’s remedies for breach by Buyer, including without limitation all costs and a reasonable attorney’s fee.  Buyer shall have no right to offset, withhold or defer the payment of any sums due and owing to PMSI on account of any claim or dispute which it may allege against PMSI.  If, at any time, PMSI perceives Buyer to be a credit risk as determined by PMSI using reasonable discretion, PMSI may, at its option, require payment in advance of performing its Services, collateral, personal guarantees or all of the foregoing.
  1. Taxes.  Any taxes, duties, fees, charges or assessments of any nature levied by any governmental, quasi-governmental, or regulatory authority in connection with these terms or as a result of the Services performed by PMSI or products sold by PMSI, shall be Buyer’s responsibility and shall be paid directly by Buyer to the applicable authority, or if requested in writing by PMSI, to PMSI for further payment to the authority.  If PMSI is required by law or otherwise to pay any such tax, duty, fee, charge or assessment, the amount of any payment so made by PMSI shall be added to the applicable invoice and reimbursed by Buyer to PMSI upon remittance of PMSI’s applicable invoice.
  1. Warranty.  PMSI warrants exclusively to Buyer that the Services provided by PMSI will be performed in a good and workmanlike manner, consistent with industry standards.  Upon receipt of prompt written notice from Buyer of a breach of this warranty, PMSI agrees to use reasonable efforts to correct or reperform the Services at issue, at its sole expense.  THE FOREGOING WARRANTY IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  PMSI’S WARRANTY OBLIGATIONS AND BUYER’S REMEDIES THEREUNDER ARE SOLELY AND EXCLUSIVELY STATED IN THESE TERMS.  ALL OTHER WARRANTIES ARE SPECIFICALLY AND COLLECTIVELY DISCLAIMED FOR ALL PURPOSES.
  1. Limitation of Liability.  UNDER NO CIRCUMSTANCES AND UNDER NO THEORY OF LAW OR EQUITY SHALL PMSI BE LIABLE TO BUYER FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOST PROFIT AND/OR LOST OPPORTUNITY.  NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TOTAL LIABILITY OF PMSI FOR ANY DAMAGES OR LIABILITY UNDER OR RELATED TO THESE TERMS OR ANY SERVICE FOR ANY REASON OR CAUSE WHATSOEVER SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY BUYER TO PMSI PURSUANT TO THESE TERMS FOR THE ORDER TO WHICH THESE TERMS PERTAIN.
  1. Buyer’s Remedies.  PMSI’s sole liability and Buyer’s exclusive remedy for nonconforming Services shall, at PMSI’s option, be reperformance of the nonconforming Service at no charge to the Buyer, or a refund of the price paid by Buyer for the nonconforming Service.
  1. Force Majeure.  PMSI shall not be liable in damages nor for any delay in performing its Services hereunder if such delay or default is directly, indirectly, completely, or partially caused by conditions beyond its control, including but not limited to acts of God, unanticipated market events, governmental or industry restriction or mandates, including but not limited to health and pandemic-related issues such as work restrictions and vaccination requirements, limitation or regulation, wars, labor or materials shortages, equipment failure or outages, insurrections and/or any cause beyond PMSI’s sole and reasonable control.
  1. Indemnity.  Buyer agrees to defend, indemnify and hold harmless PMSI and its respective affiliates, subsidiaries, officers, directors, employees, members and agents from and against all claims, losses, costs, expenses, damages, suits or liabilities of any nature arising out of Buyer’s acts or omissions, negligence, contributory negligence, or willful misconduct, or any loss caused (whether directly or indirectly) by Buyer’s employees, agents, property or property in possession of or under the responsibility of Buyer.
  1. Disclaimer.  PMSI expressly advises Buyer that PMSI is not an insurer or guarantor of the quantity or quality of any surveyed or inspected product or cargo and, therefore, disclaims any liability therefor.  In providing the Services, PMSI’s employees exercise reasonable care and best judgment under the prevailing conditions as they are observed and understood and reasonably evaluated by PMSI’s employees, utilizing accepted standards and normal operating procedures.  Any information or recommendation, whether express or implied by PMSI , is based solely upon factual assumptions based upon the information made available to PMSI, which factual assumptions shall be deemed to be correct unless manifestly incorrect.  Accordingly, PMSI does not accept any liability with respect to the use of or for any  damages resulting from the use of any information, data, analytical results, apparatus and methods.  Furthermore, PMSI will not be liable or responsible to any third party for the Services or products delivered, or any omissions from the document delivered therefrom.
  1. Insurance.  Buyer and PMSI each shall carry appropriate insurance coverages, including statutory workers’ compensation for $1,000,000 per accident and $1,000,000 per disease, general liability insurance coverages in amounts not less than $6,000,000 for personal injury, $100,000 for property damage, $6,000,000 per occurrence, automobile liability coverage of $1,000,000 per accident, professional liability insurance of $1,000,000; and any other insurance required by law.  Upon written request of a party, the party receiving the request shall promptly deliver to the party making the request, one or more certificates specifying the coverage in the minimum amounts set forth in this paragraph.  PMSI shall have the right to delay the provision of its Services until it receives the requested certificate of insurance.
  1. Nonsolicitation.  During the performance of the Agreement and for a period of twenty-four (24) months after its final completion, Buyer shall not, directly or indirectly (i) contact, recruit, solicit or induce, or attempt to contact, recruit, solicit or induce, any employee, consultant, agent, director or officer to terminate his/her employment with, or otherwise cease any relationship with PMSI; (ii) contact, solicit, divert, take away, or attempt to contact, solicit, diver tor take away any clients, customers, vendors or accounts of PMSI; or (iii) use its knowledge of PMSI’s clients, customers, vendors or employees to do business with, negotiate or make agreements or terms with them, or communicate with them to the PMSI’s detriment, or with respect to their relationship with PMSI.
  1. Confidentiality.  Buyer acknowledges that any information disclosed to PMSI shall not be subject to any restriction on disclosure nor shall be subject to any restrictions on Buyer’s use, including but not limited to reproduction, modification, disclosure or distribution of the information.  Buyer shall consider and treat all information furnished by PMSI and relating to the Agreement as confidential and shall not disclose any information to any other person or use any information itself for any purpose other than pursuant to and as required by these Terms.  In addition to all remedies at law, PMSI shall have the right to obtain any temporary or permanent injunction enjoining Buyer to (i) cease using or disclosing any of PMSI’s confidential information, or (ii) cease conduct that is violative of the provisions of paragraph 11 (Nonsolicitation).
  1. No Third-Party Beneficiary.  Buyer is procuring the Services of PMSI solely for its own benefit and not for any other person or entity.  There are no third-party beneficiaries to these Terms between Buyer and PMSI.  No third party may rely on any PMSI report provided as part of the Services.  Buyer shall defend, indemnify and hold harmless PMSI and its respective affiliates, officers, directors, employees, members and agents, from and against all claims, losses, costs, expenses, damages, suits or liabilities made by any third party in any way related to the Services.
  1. Relationship of the Parties.  PMSI will perform all Services as an independent contractor of Buyer.  Neither these Terms nor the performance of the Services or provision of products hereunder shall be construed to establish a partnership, agency or joint venture relationship.
  1. Witness Fees.  Should an employee of PMSI be called to testify or be a witness at trial, deposition, participate in discovery, attend any administrative procedure, or otherwise assist in any dispute between Buyer and any third party with respect to PMSI’s Services, and whether or not PMSI or its employee shall have been subpoenaed, Buyer shall pay PMSI the current rate, fee and any other charges for such witness services rendered.
  1. Waiver.  Failure of either party to insist upon strict performance of any provision of these Terms by the other party shall not be deemed to be a waiver by such party of its rights or remedies, or a waiver by it of any subsequent default by the other party in the performance of or compliance with any of the terms of this Agreement.
  1. Notices.  All notices hereunder shall be sent via email to the parties listed below at their respective email addresses, which email messages must be proven to have been read by the receiving party or by United States mail, postage prepaid.

The email address and mailing address of PMSI is:

Professional Marine Services, Inc.
ATTN: John Peters, President
USPS:  Professional Marine Services, Inc.

P. O. Box 86
Catoosa, OK 74015-0086
Overnight Courier: 1802 North 168th East Avenue
Tulsa, OK 74116
john.peters@profmarine.com

The email address and mailing address of Buyer is as set forth on the order, and if not set forth, then as specified in PMSI’s records.

Each party shall have the right to amend its email address or mailing address by providing notice to the other party in the manner set forth herein.

  1. Jurisdiction and Venue.  The Terms and any Services performed pursuant hereto shall be governed by the laws of the State of Oklahoma.  Any dispute, controversy or claim arising out of relating to these Terms or the Services shall be finally settled in accordance with the Arbitration Rules of the American Arbitration Association, which rules are deemed to be incorporated by reference in this clause.  The number of arbitrators shall be one.  The seat of the arbitration shall be Tulsa, Oklahoma.  The parties will equally split the fees of the arbitrator.
  1. Severability.  If any provision of these Terms is finally determined to be unlawful, such provision will be deemed to be severed from these Terms and every other provision of these Terms will remain in full force and effect.
  1. Assignment.  The Agreement shall not be assigned by either party without the written consent of both parties.
  1. Compliance with Law.  Each Party represents and warrants on a continuing basis for the duration of this Agreement that it is not the subject of any governmental sanctions and will comply with any and all applicable laws, rules, or regulations.  Either Party may, at its election, suspend the contractual performance that is violative of law, rules or regulations, including without limitation the Foreign Corrupt Practices Act of 1977, or prohibited by any of the sanctions.  The suspension of performance under this paragraph shall not be considered as a breach of contract.
  1. Entire Agreement.  These Terms supersede all other agreements, oral or written, made with respect to the subject hereof and the Services contemplated hereby, and contains the entire agreement of the parties.