Effective Date: October 30, 2024
*Note: in the event of a conflict between these terms and conditions and any separate agreement entered between Unimed* and the Company, Manager or Owner relating to Oxygen supplies or services, the separate agreement terms shall prevail.
Oxygen Supply Agreement
THIS OXYGEN SUPPLY AGREEMENT (this “Agreement”) is made and entered into as of the date listed on the order form (the “Order Form” and such date the “Contract Date”), by and between UNIMED* and its subsidiaries (as applicable) (“Contractor”) and either (i) the owners and operators of Eligible Vessels (as defined below, such owner(s) and operator(s), (the “Owners”) or (ii) in the event that an Owner has engaged a manager to act as an agent on its behalf, then such manager shall be defined as “Manager” and if the Manager has engaged a company to act on behalf of the Manager, then such company shall be defined as the “Company” , and the Owner or, as applicable, Manager or the Company and the Contractor are referred to herein as the “Parties” and each is a “Party”.
Recitals
A. The Contractor provides cost effective and comprehensive medical supplies, including oxygen tanks to owners, managers and operators of vessels l (“Oxygen Supply”).
B. The Manager manages the vessels eligible for Oxygen Supply by the Contractor as described in the Order Form (each an “Eligible Vessel” and together, the “Eligible Vessels”) as agent for and on behalf of the Owners.
C. The Company (as applicable) acts as an agent for and on behalf of the Manager who acts as agent for and on behalf of the Owners and warrants that it has full authority to enter into this Agreement on behalf of each of the Owners and has full authority to bind the Owners pursuant to Section 6.
D. The Contractor and the Company (as applicable) as an agent of the Manager as the agent of the Owners have mutually agreed to the terms outlined below whereby the Contractor shall provide the Oxygen Supply to each Eligible Vessel.
Agreement
1. Oxygen Supply
(A) The Contractor shall provide the Oxygen Supply to the Manager (or, if directed, the Company, as applicable) as an independent contractor subject to the terms and conditions in this Agreement. The Oxygen Supply provided to the Manager (or, if directed, the Company, as applicable) under this Agreement shall be set forth in the Order Form or one or more statements to be issued by the Contractor and accepted by the Manager, in writing, email is sufficient, (each, a “Statement of Oxygen Supply”). The initial accepted Statement of Oxygen Supply is listed in the Order Form. Additional Statements of Oxygen Supply shall be deemed issued and accepted only if accepted and executed by each Party.
(B) The Contractor shall only be responsible for supplying and delivering on the Statement of Oxygen Supply. The Contractor may track the products in accordance with Section 3. Any request for products or services outside of the Statement of Oxygen Supply shall be outside of this Agreement and subject to separate written agreement on mutually acceptable terms and conditions.
(C) The Contractor shall provide the Oxygen Supply to the Eligible Vessel’s agent or directly to the Eligible Vessel at a frequency, in a manner and at a place of the Contractor’s choosing. If the Manager (or the Company, as applicable), requests any change to the Oxygen Supply, that request is outside of this Agreement and subject to separate written agreement on mutually acceptable terms and conditions, which shall include that the Manager (or the Company, as applicable) shall procure that the relevant Owner provides funds to pay for agency services, customs fees, taxes, duties and any additional costs, fees, and expenses incurred by the Contractor in connection with the requested change.
2. Term And Commencement
Contractor shall commence its obligations under this Agreement with respect to an Eligible Vessel on earlier of the date that (i) the Subscriber begins to receive the Oxygen Supply (ii) is listed on an Order Form executed by the Manager (or the Company, as applicable) or Owner (and such date, the “Commencement Date”). Thereafter, this Agreement and the relevant Oxygen Supply shall be effective for the earlier (x) the Oxygen Supply is used or (y) the date of which the Oxygen Supply expires (“Term”) for each Eligible Vessel.
3. Communications And Reporting
(A) The Manager (or the Company, as applicable) shall designate one of the Manager‘s (or the Company’s, as applicable) employees to serve as its primary contact for all communications under this Agreement and to act as its and the Manager‘s and Owners’ authorized representative and agent for all matters pertaining to this Agreement (“Manager/Company Contact”), with such designation to remain in force unless a successor Manager/Company Contact is appointed and notified to the Contractor in writing. The Manager (or the Company’s, as applicable) shall procure that the Manager/Company Contact shall: (a) respond promptly to any reasonable requests from the Contractor for instructions, information, or approvals required by the Contractor to provide the Oxygen Supply; (b) cooperate with the Contractor in the provision of the Oxygen Supply and procure access to the Eligible Vessels, Manager (or the Company’s, as applicable) employees, and/or equipment necessary to fulfill the Oxygen Supply; and (c) procure all required licenses, approvals, registrations, consents and the like to prevent the Manager (or the Company’s, as applicable) causing delays in the Contractor’s provision of the Oxygen Supply.
(B) The Manager may, or in the case that there is a Company, the Company may procure that the Manager/Company Contact will obtain information on all stock and supplies utilized during the preceding ninety (90) day period and report the same to the Contractor at least once every ninety (90) days from the initial provision of the Oxygen Supply (“Usage Reporting”). The Usage Reporting shall be reported via medScale+, the UMM online inventory management application (the “Software”) or via email report in excel format in a form acceptable to the Contractor. The Manager (or the Company, as applicable) acknowledges that the monitoring of usage described in this Section or any Order Form is possible only if the Usage Reporting is provided by the Manager (or Company, as applicable).
(C) In its sole discretion, the Contractor may contact the Manager/Company Contact upon either (i) the depletion any items in the Oxygen Supply or (ii) six (6) months prior to the expiration of the Oxygen Supply remaining and, in each case, provide options for replenishment to the Manager/Company Contact at the then–current rates.
4. Compensation
(A) During the term of this Agreement, the Owners, either directly or through the Manager (or the Company, as applicable), shall pay Contractor, for each Eligible Vessel, an annual Oxygen Supply fees as described on the Order Form (collectively, the “Fee”), which shall be billed for each Eligible Vessel on the applicable Commencement Date.
(B) All payments to be made to the Contractor pursuant this Section 4 shall be due and payable within thirty (30) days of invoicing. Such invoice shall be provided on or about the delivery of the Oxygen Supply. If any payment due from the Manager, the Company (as applicable) or the Owner hereunder shall be overdue for more than fifteen (15) days, the Manager, the Company (as applicable) or the Owner hereunder shall pay interest thereon at a rate equal to the lesser of the highest rate permitted by law or one and one half percent (1.5%) per month (eighteen percent (18%) per annum), such interest charge to be computed for the entire period for which the amount is overdue and which shall be in addition to any other remedy available to Contractor. If payment is not received by the sixtieth (60th) day after invoicing, the Contractor’s obligation to provide the Oxygen Supply shall be immediately terminated. Notwithstanding, the Owners shall still be liable for the Fee and all other fees under this Section 4. The Parties agree that, once paid, there are no reimbursements of any fee paid. Payments to Contractor of the Fees: (i) will be made in full, with no deductions or set off, including, but not limited to, any third party commissions, fees, bank fees or other charges, and irrespective of the outcome of any insurance; and (ii) are exclusive of withholding tax, customs, levies, excise taxes and sales taxes (including without limitation value added tax, goods and services tax and use tax) which Contractor will charge when applicable. In addition, the Owners and Manager (or the Company, as applicable) shall be liable for all costs and expenses incurred in collecting any late payments or any other breach of this Agreement by the Manager (or the Company, as applicable) or the Owners, including, without limitation, third party advisor, including, but not limited to attorneys’ fees.
5. Status; No Control By Manager, Company (as appliable) or Owners
(A) The Contractor is an independent contractor and all of its duties and obligations are set forth in this Agreement. Neither the Manager, the Company (as applicable) nor Owners shall have any direction or control over the frequency, manner or method in which the Oxygen Supply is provided by the Contractor, which is exclusively within the control of the Contractor.
(B) Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between Contractor and any of the Manager, the Company (as applicable) or Owners.
(C) The Contractor is not an employee of the Manager, the Company (as applicable) or Owners. None of the Manager, the Company (as applicable) or Owners will withhold income or payroll taxes from any payments made to the Contractor. Instead, the Contractor will be solely responsible for all of Contractor’s federal and state taxes, including the payment of all income taxes, estimated taxes and self-employment taxes or other payroll taxes attributable to all payments received by the Contractor under this Agreement. The Contractor shall have no claim against the Manager, the Company (as applicable) or Owners for vacation pay, sick leave, retirement benefits, social security, workers’ compensation, health or disability benefits, unemployment insurance benefits or employee benefits of any kind. The Contractor shall have no authority to contract for or legally bind the Manager, the Company (as applicable) or Owners regarding any matter nor shall the Contractor have any authority (either express or implied) to make any representations or warranties regarding, or otherwise attributable to, any matters relating to the Manager’s or Owners’ business activities. The Contractor shall be free to engage in any other independent contracting activities, provided that the Contractor shall not be relieved from any breach of any provisions in this Agreement.
6. Undertakings and Warranties
(A) The Contractor undertakes to the Manager (or the Company, as applicable) that it shall provide the Oxygen Supply:
(B) The Manager (or the Company, as applicable) warrants to the Contractor that:
(C) The Manager (or the Company, as applicable) shall indemnify the Contractor, its affiliates, and its and their respective officers, directors, employees, consultants, agents and representatives for any breach of this Agreement by the Manager, the Company (as applicable) or Owners.
7. Confidentiality
Each Party agrees that it will not use (for its own benefit or otherwise) or disclose any non-public, proprietary, or personal information (collectively, “Confidential Information”) received from the other Party other than as expressly permitted under the terms of the Agreement or as expressly authorized in writing by the disclosing party. The receiving party will use the same degree of care to protect the disclosing party’s Confidential Information as receiving party uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. The receiving party will not disclose the disclosing party’s Confidential Information to any person or entity other than the receiving party’s officers, principals, affiliates, employees (“Representatives”) who need access to such Confidential Information in order to perform the receiving party’s obligations under the Agreement and who are bound by confidentiality terms no less restrictive than those in this Agreement. The receiving party shall be responsible and liable for any breach of the terms and conditions of this Agreement by its Representatives.
8. Data Protection and Intellectual Property Rights
(A) The Parties agree to comply with all applicable domestic and international data protection laws including the General Data Protection Regulation when processing personal data in the context of this Agreement. The Parties warrant and represent that, when sharing personal data with each other, such personal data has been collected and processed in compliance with applicable data protection law.
(B) Contractor may use Marks for marketing or promotional purposes, including, but not limited to, on Contractor’s website and social media platforms to identify the Manager or the Company (as applicable) as a customer of Contractor. Marks shall mean name, logo, trademarks, services marks and copyrights owned by a Party.
9. Software Services as Oxygen Supply
(A) In the event that the Software is part of the services described in the Oxygen Supply and subject to the terms of this Agreement, Contractor will use commercially reasonable efforts to provide Manager, Company (as applicable) or Owner with access to certain Software as specified in the Order Form. Contractor grants to Manager, Company (as applicable) or Owner and its authorized users a non-transferable, non-assignable and non-sublicensable license to access and use the Software during the Term. Contractor reserves the right to modify the Software at any time for any reason, including without limitation, to cease providing the Software, or any component thereof, if necessary for regulatory or business reasons; and furthermore, Contractor reserves the right to change features of the Software provided that Contractor will not make any changes that materially degrade the Software during the term of the Order Form. Contractor may provide, make available or otherwise permit some or all elements of the Software to connect with products or services that are provided by third parties or Manager, Company (as applicable) or Owner which interoperate with the Software (“Third Party Services”). For the avoidance of doubt, the “Software” exclude Third Party Services, and Contractor shall not be responsible or liable for such Third Party Services in any way. Contractor does not warrant or offer support for Third Party Services. Company may remove Third Party Services at any time. Notwithstanding anything to the contrary contained herein, Manager, Company (as applicable) and Owner agree and acknowledge that the Contractor provides the Software “as is “without any express or implied warranties. Contractor does not warrant the accuracy, timeliness, completeness, adequacy, merchantability, or fitness for any particular purpose.
(B) Manager, Company (as applicable) or Owner will not (i) make any Software available to anyone other than Manager, Company (as applicable) or Owner, or use any Software for the benefit of anyone other than Manager, Company (as applicable) or Owner, unless expressly stated otherwise in an Order Form or the Agreement, (ii) sell, resell, transfer, assign, outsource, license, sublicense, distribute, rent, lease or commercially exploit or make available to any third- party other except as permitted by this Agreement or Order Form, any Software, or include any Software in a service bureau or outsourcing offering, (iii) use Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) use Software to store or transmit malicious code, (v) interfere with or disrupt the integrity or performance of any Software or third-party data contained therein, (vi) attempt to gain unauthorized access to any Software or its related systems or networks, (vii) permit direct or indirect access to or use of any Software in a way that circumvents a contractual usage limit, or use any Software to access, copy or use any of intellectual property except as permitted under this Agreement, or the Order Form, (viii) modify, copy, or create derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download, or copy any part of the Software (including data structures or similar materials produced by programs) or any part, feature, function or user interface thereof, (ix) copy Software or content except as permitted herein or in an Order Form, (x) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Software or access it to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the Service, (c) copy any ideas, features, functions or graphics of the Service, or (d) determine whether the Software are within the scope of any patent.
(C) Manager, Company (as applicable) or Owner grants to Contractor and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Manager, Company (as applicable) or Owner relating to the operation of Contractor’s services.
(D) Manager, Company (as applicable) and Owner hereby agrees to defend (if requested by Contractor), Contractor and its subsidiaries and affiliates, and its and their officers, directors, employees, agents, service providers, licensors, and affiliates (the “Contractor Indemnified Parties”) from and against any claim, suit, action, or proceeding based upon or arising out of: (a) the customer data, including any claim that the customer data infringes, misappropriates, or otherwise violates any third party’s rights, including without limitation, with respect to intellectual property right or other proprietary rights, privacy rights, or publicity rights; (b) use of the Software or any Third Party Services that Manager, Company (as applicable) or Owner elects to interoperate with its use of the Software; and (c) Manager’s, Company’s (as applicable) or Owner’s noncompliance with or breach of this Section, including, without limitation, in connection with any claim or action that arises from an alleged violation of any of each of the their representations, warranties, and covenants under this Section; and, in each case, Manager, Company (as applicable) or Owner will indemnify and hold harmless the Contractor and Contractor Indemnified Parties for any liabilities (including damages awarded or payments agreed to in any judgment, consent decree or settlement), damages, fines, penalties, losses, costs and expenses (including court costs and reasonable attorneys’ fees and disbursements) in connection therewith.
10. Limitation of Liability
(A) IN NO EVENT SHALL CONTRACTOR BE LIABLE TO THE COMPANY, MANAGER OR OWNERS OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL CONTRACTOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO CONTRACTOR PURSUANT TO THE APPLICABLE STATEMENT OF OXYGEN SUPPLY IN THE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(B) FOR UNIMED UK Entity: Except as expressly stated in this Agreement, this Agreement does not confer any rights on any person or party under the Contracts (Rights of Third Parties) Act 1999. The Parties may rescind, vary or terminate this Agreement in accordance with its terms without the consent of or notice to any person on whom such rights are conferred.
11. Miscellaneous Provisions
(A) This Agreement, including any Order Form(s), related Statements of Oxygen Supply, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement between the Contractor and the Manager, the Company (as applicable) or any Owner regarding the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
(B) All notices, requests, consents, claims, demands, waivers and other communications shall be in English and in writing and addressed to the Parties at the addresses on the first page of this Agreement (notices to be addressed to an Owner shall be deemed delivered if delivered to the address of the Manager (or the Company, as applicable)) or to such other address that may be designated by the receiving Party occasionally under this Section. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), or email (with confirmation of transmission) (with respect to the Contractor to the designated contact email address provided by the Contractor and to the Manager (or the Company, as applicable) and / or Owners to the email address currently on file with the Contractor, or, in each case, such other email address(es) as may be notified by a Party to the other Party in writing from time to time), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if the Party giving the Notice has complied with the requirements of this Section.
(C) This Agreement and any modification or amendment to this Agreement will be posted online. For new Order Forms, this Agreement shall be effective as of the date posted for Order Form. In the event of a modification of this Agreement during the Term, such modification or amendment shall be effective thirty (30) days from the Effective Date. Any terms, provisions or conditions on a purchase order, request for services, or other similar document from the Manager, the Company (as applicable) or the Owner which relate to, or purport to modify or override, any provision of this Agreement (including any of online terms of the Manager, Company (as applicable) or the Owner), are void. The terms hereof may be waived, only by a written document signed by each Party to this Agreement or with waiver, by the Party or Parties waiving compliance.
(D) FOR UNIMED US Entity: This Agreement shall be governed by and construed and enforced under the State of Delaware without regard to conflicts of law or principles thereof
FOR UNIMED UK Entity: This Agreement shall be governed by and construed and enforced under the laws of England and Wales without regard to conflicts of law or principles thereof.
(E) Any claim of whatever character arising under or relating to this Agreement shall be brought exclusively in the courts of Delaware (for UNIMED US Entity) and England and Wales (for UNIMED UK Entity) and (ii) that any claim described in the foregoing clause filed in any other court shall be conclusively deemed as violating the expressed intent of this mandatory forum selection clause. The Manager (or the Company, as applicable) expressly waives, to the fullest extent permitted by law, any objection it may now or hereafter have laying venue of any such litigation brought in any such court referred to above, including, without limitation, (i) any defense claiming lack of jurisdiction in any action brought in such court, and (ii) any claim that any such litigation has been brought in an inconvenient forum.
(F) This Agreement has been prepared by the Contractor because of negotiations between the Company (acting as the agent of the Manager, as applicable), the Manager (acting as the agent of the Owners) and the Contractor. Each Party recognizes and confirms that it was given every opportunity to have this Agreement reviewed by its own counsel. No presumption shall be made on the interpretation of any provision because of this Agreement having been prepared by counsel for the Contractor.
(G) This Agreement shall be legally binding upon and shall operate for the benefit of the Parties, their respective successors and permitted assigns. This Agreement may not be assigned by the Manager, the Company (as applicable) or any of the Owners without the prior written consent of the Contractor.
(H) The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions, and this Agreement shall be construed as if such invalid or unenforceable provisions were omitted.
(I) This Agreement may be signed and executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one agreement.
(J) The waiver or inaction by either Party of a breach of any condition by the other Party shall not be construed as a waiver of any later breach by such Party, nor shall it constitute a waiver of that Party’s rights, actual or inherent. The failure of any Party in any instance to insist upon strictly performing this Agreement or to exercise any option herein shall not be construed as a waiver or a relinquishment in the future of such term or option, but that the same shall continue in full force and effect.
(K) The Parties acknowledge that breach or evasion by either Party of any provision of this Agreement may result in injury to the other Party, and may cause that other Party to suffer damages that cannot be quantified monetarily. Accordingly, upon such a breach, the injured Party shall be entitled to seek a preliminary and permanent injunction, as well as any other legal or equitable remedies to which such Party may be entitled. The rights and remedies conferred on any Party by, or pursuant to, this Agreement are cumulative, and, except as expressly provided in this Agreement, are in addition to, and not exclusive of, any other rights and remedies available to such Party at law or in equity.
(L) Unless expressly provided otherwise in this Agreement, each Party shall bear its own costs and expenses in relation to the negotiation, preparation, execution and implementation of this Agreement and the transactions contemplated herein.
(M) The Contractor shall not be liable or responsible to the Manager (or the Company, as applicable), nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Contractor including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, tsunami, hurricane, tornado, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if this event continues for a continuous period over thirty (30) days, the Manager (or the Company, as applicable) shall be entitled to give notice in writing to the Contractor to terminate this Agreement.
(N) Any waiver of any term or condition of this Agreement, waiver of any breach of any term or condition of this Agreement, or waiver of, or election whether or not to enforce, any right or remedy arising under this Agreement or at law, must be in writing and signed by or on behalf of the person granting the waiver, and no waiver or election shall be inferred from a Party’s conduct. Any waiver of a breach of any term or condition of this Agreement shall not be, or be deemed to be, a waiver of any subsequent breach. Failure to enforce any provision of this Agreement at any time or for any period shall not waive that or any other provision or the right subsequently to enforce all provisions of this Agreement. Failure to exercise, or delay in exercising, any right or remedy shall not operate as a waiver or be treated as an election not to exercise such right or remedy, and single or partial exercise or waiver of any right or remedy shall not preclude its further exercise or the exercise of any other right or remedy.
*A note on the UNIMED contracting entity. If the Contractor on the Order Form lists:
UNIMED UK Entity–
UNIVERSAL MARINE MEDICAL LIMITED, a private company limited by shares incorporated under the laws of England with registered number 06626061 and whose registered office is at Unit 24a Romsey Industrial Estate, Greatbridge Road, Romsey, Hampshire, SO51 0HR
UNIMED US Entity–
UNIVERSAL MARINE MEDICAL SUPPLY INTERNATIONAL, LLC, a Delaware limited liability company located at 107 Corporate Ct Unit D, South Plainfield, NJ 07080