TBS Standard Terms and Conditions
· Once the order form is signed and returned, this becomes a legally binding agreement between Tug and Barge Solutions, Inc. (TBS Safety) (PROVIDER) and the signer (COMPANY).
· The minimum term for a PROVIDER agreement is 12 months. At the end of the 12-month term, the contract between PROVIDER and COMPANY will auto-renew for a 12-month period at the current list price.
· This Agreement may be terminated by either Party, including during the Initial 12 month term: (i) if a Party breaches any material term or condition of this Agreement and does not cure such breach within thirty (30) days after prior written notice thereof by the other Party; or (ii) if the other Party is insolvent or makes a general assignment for the benefit of creditors or files a voluntary petition in bankruptcy or if a petition in bankruptcy is filed against such other Party and any such petitions are not dismissed within ninety (90) days after the filing, or if a receiver or trustee is appointed for all or any part of the property or assets of such other Party.
· To cancel this agreement at any time, please notify PROVIDER in writing with 60 days’ notice citing your intent to cancel or amend your subscription. PROVIDER retains the right to refund a pro-rata amount of payments made by COMPANY to PROVIDER for services which were not provided. PROVIDER and COMPANY will agree to a mutually agreeable stopping point.
· PROVIDER represents that PROVIDER is duly licensed, as applicable, and has the qualifications, the experience and the ability to properly perform the Services.
· Initial invoice for PROVIDER will be sent to COMPANY on or around Start Date. Afterward, invoices will be sent to the COMPANY 30 days in advance. COMPANY agrees to start payments within 30 days of Activation Date.
· "Start Date" means either the date of the first scheduled audit/survey or the first date that COMPANY is enabled to connect to the COMPANY’s system if they elect to use Helm CONNECT for recordkeeping.
· The COMPANY agrees to submit to the jurisdiction of Baldwin County, Alabama, where the PROVIDER is located. This contract is transferable by the PROVIDER.
· TBS Safety requires a payment method on file for all monthly and one-time fees. Payment will be charged to the method on file on an agreed upon monthly date.
· Out-of-pocket expenses include all travel expenses. Incidents and situations that go above and beyond normal consulting service which will be charged an additional $1,000 per day. COI and TPO Audits are charged at $1,000.00 per occurrence plus all travel costs. Additional consulting services will be charged at a day rate of $1,000. Any court appearances, depositions or other legal matters will be charged at a rate of $2,400 per day. Invoices will be considered due upon receipt. Invoices over five days past due will be charged a late fee of $50.00 per day for up to five days. Invoices past due 10 days will result in the suspension of all services. Invoices past due 30 days will be sent to collections. Original out-of-pocket expense receipts are available for review by Clients by request.
· I hereby agree that this agreement shall be interpreted according to the laws of Alabama. Any disputes between the parties to this agreement shall be litigated in and venue shall be Baldwin County, Alabama.
· The parties agree that neither party shall not be liable to each other for any claims, liabilities, or expenses relating to this agreement for an aggregate amount in excess of the greater of the fees payable by the Company to Provider pursuant to this Agreement, except to the extent resulting from the bad faith, negligence, or intentional misconduct of the liable party. Neither party shall be liable for consequential damages, including lost profits or business interruption damages.
· All of the correspondence, written materials, applications, maps, surveys, specifications, reports, studies, designs, plans, prints, sketches, photographs, renderings, field data, test data, and other work product required by or produced by PROVIDER in the course of performing its Services are and shall remain, to the extent paid for, together with all copyright privileges, the property of the COMPANY.
· Each Party to this Agreement shall (a) preserve and maintain the subsistence and validity of the Intellectual Property necessary for the Business; (b) use commercially reasonable endeavors to prevent any infringement in any material respect of the Material IP; (c) make registrations and pay all registration fees and taxes necessary to maintain the Material IP in full force and effect and record its interest in that Material IP; (d) not use or permit the Material IP to be used in a way or take any step or omit to take any step in respect of that Material IP which may materially and adversely affect the existence or value of the Material IP or imperil the right of a Party to use such property; and (e) not discontinue the use of the Material IP.
· All documents, forms, etc. shall be returned upon the completion or termination of this agreement.
· The SMS/TSMS and/or HSP is the exclusive property of the PROVIDER. All forms, checklists, maintenance routines, inspections, audits and other compliance items in HelmCONNECT are the exclusive property of the PROVIDER. Historical records are the property of the COMPANY.
· The TBS Intellectual Property (TSMS, SMS, HSP and/or forms, inspections, maintenance routines, audits and other items built into the recordkeeping system may be purchased from the PROVIDER by the COMPANY.
· If the PROVIDER is sold, it is agreed and understood that the terms of this agreement shall transfer to the purchaser of said company, with all included rights and obligations.
· Confidential Information” shall mean any oral, written, graphic or machine-readable information provided by the COMPANY to the PROVIDER including, but not limited to, that which relates to business plans, agreements, services, customers, marketing, finances, patents, patent applications, research, product plans, products, developments, inventions, processes, designs, drawings, engineering or formulae of the COMPANY or its Affiliates. Notwithstanding the foregoing, Confidential Information shall not include information which the PROVIDER can prove (i) is or becomes generally available to the public other than as a result of disclosure by the PROVIDER or its Representatives (as defined below); (ii) was available to the PROVIDER on a non-confidential basis prior to its disclosure by the COMPANY; (iii) is or becomes available to the PROVIDER or its Representatives on a non-confidential basis from a source other than the COMPANY when such source is not subject to a confidentiality obligation to the COMPANY (iv) was independently developed by the PROVIDER or its Representatives, without reference to the Confidential Information; or (v) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the PROVIDER shall provide prompt notice of such court order or requirement to the COMPANY to enable the COMPANY to seek a protective order or otherwise prevent or restrict such disclosure. The PROVIDER agrees not to use the Confidential Information for its own use or for any purpose other than to carry out the Services. The PROVIDER agrees not to disclose the Confidential Information to third parties other than to the PROVIDER’s directors, officers, employees and agents (collectively, “Representatives”) to the extent necessary to carry out the Services. Prior to any disclosure of Confidential Information to such Representatives, the PROVIDER shall ensure that its Representatives have been notified of the confidential nature of the Confidential Information and shall direct such Representatives to treat such information in accordance with the terms hereof. The PROVIDER shall be liable for any breach by its Representatives of the non-use or non-disclosure terms of this Agreement. Nothing in this Agreement is intended to grant any rights to the PROVIDER under any patent, copyright, mask work right, trade secrets or other intellectual property of the COMPANY’s, nor shall this Agreement grant the PROVIDER any rights in or to the Confidential Information except as expressly set forth herein. The PROVIDER shall not, without the prior written consent of the COMPANY disclose to any other person the fact that Confidential Information of the COMPANY may be disclosed under this Agreement, that discussions or negotiations are taking place between the PROVIDER and the COMPANY, or any of the terms, conditions, status or other facts with respect thereto, except as required by law and then only with prior notice as soon as possible to the COMPANY. The PROVIDER agrees and acknowledges that any violation or threatened violation of any of the terms of this Agreement may cause irreparable injury to the COMPANY and no remedy at law will afford the COMPANY adequate protection against or compensation for such injury, entitling the COMPANY to seek any equitable relief, including injunctive relief or specific performance or both, without the requirement of posting a bond or other security, in addition to all legal remedies.
· During the term of the Agreement, and for a period of twelve (12) months immediately following the termination of the Agreement for any reason, whether with or without cause, PROVIDER and COMPANY shall not either directly or indirectly solicit, induce, recruit or encourage any of the PROVIDER’s or COMPANY’s employees or consultants to terminate their relationship with the PROVIDER or COMPANY, or attempt to solicit, induce, recruit, encourage or take away employees or consultants of the PROVIDER or COMPANY, either for PROVIDER or COMPANY or for any other person or entity. Further, during the term of this Agreement and at any time following the termination of the Agreement for any reason, whether with or without cause, neither Party shall use any Confidential Information of the PROVIDER or COMPANY to negatively influence any of the PROVIDER or COMPANY’s existing or potential clients, counterparties or customers from purchasing or providing PROVIDER or COMPANY products or services or to solicit or influence or attempt to influence any existing or potential client, counterparty, or customer either directly or indirectly, to direct any purchase or provision of products and/or services to any person, firm, corporation, institution or other entity in competition with the business of the PROVIDER or COMPANY.
· The training provided by the PROVIDER in the system is intended to deliver relevant knowledge and guidance to participants. However, the PROVIDER does not guarantee that participants have fully absorbed, understood, or retained the material presented during the training sessions. It is the sole responsibility of the COMPANY to ensure that their employees are thoroughly trained, competent, and in compliance with all applicable regulations and company standards.
· The PROVIDER assumes no liability for any outcomes related to participants' application or misapplication of the information provided in the training. The COMPANY must take all necessary steps, including follow-up evaluations and additional training, to verify that employees have adequately learned and can apply the training effectively in their work environment.
· By participating in this training, the company acknowledges and accepts this disclaimer.