Valiant Artificial Lift Solutions LLC
STANDARD TERMS & CONDITIONS OF PURCHASE
I. Acceptance of Valiant ALS LLC Purchase Order by Seller
Purchase Order may be accepted by Seller only on the terms set forth herein. Any terms proposed by Seller which are in addition hereto or not Identical with the terms hereof will not become a part of any contract, unless Buyer specifically and expressly agrees in writing that such other terms are accepted. In no event, shall Buyer be deemed to have accepted such other terms by virtue of any writing contained in Seller’s Order acknowledgement, invoice, or other pre-printed form. By accepting Order or any part hereof, Seller agrees to and accepts all the provisions of Order Including drawing and specification documents by reference therein and all the provisions of the Valiant ALS LLC Supplier Quality.
II. Payment Terms
Unless otherwise stated on the face of the Order or restricted by applicable law, payment terms are net due 60 calendar days from the end of the month when the Payment Start Date occurs, where the “Payment Start Date” is the latest of the required date identified on the Order, the received date of the goods and/or services in Buyer’s receiving system, or the date of receipt of a valid invoice by Buyer (provided that, where applicable, invoices shall be issued according to the terms set forth in the Order.)
III. Acceptance of Contract
Buyer shall not be bound by Purchase Order until Seller executes and returns to Buyer an acknowledgment of Order. Seller shall be bound by Order and Its terms and conditions when it executes and returns an acknowledgement when it otherwise indicates its acceptance of the Order, or when it delivers to Buyer any of the goods ordered or renders to Buyer any of the services ordered. This Order expressly limits acceptance by Seller to the terms and conditions herein stated and any additional or different terms proposed by the Seller are rejected unless expressly consented to in writing by the Buyer. No contract shall exist except as herein above provided. Waiver or the failure of Buyer to Insist on any one or more Instances upon the performance of any terms, covenants, or conditions of this contract or to exercise any right hereunder shall not be construed as a waiver or relinquishment of the future performance at any such terms, covenants or conditions or the future exercise of such right. but the obligation of Seller with respect to such future performance shall continue in full force and effect.
IV. Inspection of Goods
All work performed, and all deliverable items are subject to inspection and acceptance within a reasonable time. but not less than 30 days, after delivery, notwithstanding any inspection prior to delivery or any prior payment for such work or items. When required, Seller will provide reasonable access to Seller’s facilities for purposes or source inspection or audit by Buyer, buyer’s customer, or third-party inspection personnel contracted by Buyer or Buyer’s customer.
V. Rejection of Goods
Buyer reserves the right to return, at Seiler’s expense, any rejected materials or services at Buyer’s cost. Buyer, at its option, may reject all or any portion of such goods and/or services that do not, in Buyer’s sole discretion, comply in every respect with each and every term and condition of Purchase Order. Buyer may elect to reject the entire goods and services tendered even if only a portion thereof is nonconforming. If Buyer elects to reject or accept non-conforming goods or services. Buyer, In addition to its other remedies provided by law, shall be entitled to charge a reasonable amount to compensate Buyer for non-value added costs such as documentation, rework, loss productivity, or other such costs attributed to the nonconformity, Any acceptance by Buyer, even if non-conditional, shall not be deemed a waver or settlement of any defect in such goods and services, and acceptance may be revoked in the event of latent defects, fraud, such gross mistakes as amount of fraud and breach or the Seller’s warranty obligations.
Time is of the essence of this Order. Unless stated otherwise on the face of the Order, delivery shall be made as follows: (i) with respect to domestic Orders, delivery terms are F.O.B. seller dock; Seller Is only authorized to use Buyer’s approved contract carriers. Seller will be liable for excess freight charges for shipping Orders using unauthorized carriers, (II) with respect to International Orders, delivery terms are EXW Seller dock: Seller Is only authorized to use Buyer’s approved contract carriers. Seller will be liable for excess freight charges for shipping Orders using unauthorized carriers. It is understood by all parties here to that with respect to the delivery schedule as specified on Purchase Order. ‘time Is of the essence. Therefore, failure to deliver procured goods or services on time may result in termination of Order at the option of the Buyer. Delivery must be made within the time stated on Order, failing which, Buyer reserves the right to procure elsewhere, and Buyer may reject materials and/or services not delivered or furnished on dates specified. On-time delivery is defined as five (5) business days early, zero (0) days late for domestic or NAFTA Seller and ten (10) business days early, zero (0) days for an overseas Seller. Where late goods are accepted by the Buyer with or without objections, such acceptance shall not constitute waive of the requirements of time and performance when performance is divisible. If no date Is specified, Buyer may exercise said rights if delivery is not made within a reasonable time.
VII. Risk of Loss
Until accepted by Buyer as provided above, SELLER shall bear all risks of loss and damage. unless such loss or damage results solely from the active negligence of Buyer.
Seller warrants, without limitation of time, that goods and services provided (a) are of merchantable quality; (b) are fit for the particular needs and purposes of Buyer as may be communicated to Seller; (c) comply with the highest warranties, representations, and opinions expressed by Seller orally or in any written advertisement correspondence or other document provided to or in possession of Buyer; (d) comply with all applicable laws. codes, and regulations as published by any national or statewide body, commission, association or group; (e) are FREE FROM defect in materials and workmanship; (f) are not restricted in any way by patents, copyrights, trade secrets. or other rights of third parties; and (g) that all goods and materials delivered are free and clear of all liens, claims, and encumbrances of any kind whatsoever. If any or the foregoing warranties Is breached, Seller agrees to correct all defects and nonconformities, to be liable for all direct, Indirect, consequential, and other damages suffered by Buyer and any other persons, and Is to defend and indemnify, Buyer from any claim (including All costs, expenses, and attorney’s fees in defending any such claim) asserted by any person resulting in whole or in part from such breach.
Seller agrees to forever indemnify, defend and save harmless Buyer from and against and to waive any and all claims against Buyer for any and all claims, suits and demands of liability, loss or damage whatsoever, including attorney’s fees, whether direct, Indirect, or consequential , on account or any Injury, death or damage to any person or persons or property including, without limitation oil agents and employees or Seller and Buyer or both, or on account of any loss or damage to business or reputation or privacy of any person, arising In whole or In part, In any way from Sellers performance hereunder or In any way connected therewith or in any way related thereto, and regardless of whether such loss. injury, death or damage results in whole or in part from (a) negligence or omission of buyer or (b) any product liability of Buyer or person or (c) any strict liability or Buyer or any person. There are excluded from the above Indemnity and waiver provisions any such claim, suits or demands of liability, loss or damage resulting solely from Buyer’s gross recklessness, active negligence, or willful intent to injure.
As used in this Indemnity and waiver provision, and for purposes or Seller’s Insurance, Buyer shall be deemed to include Valiant ALS LLC, its directors, officers. and employees. agents, affiliated organizations, and their Insurance carriers, if any. If Seller’s work under the order Involves operations by the Seller outside of the Seller’s promises, seller shall take all necessary precautions to prevent the occurrence of damage to persons or property during the progress of such work and shall indemnify Buyer against all loss which may result in any way from any act of omission or commission on the part of the Seller, its agents, employees or subcontractors, except to the extent that any such damage Is due solely and directly to the active negligence or the Buyer. if the work under the order Involves operations by Seller on the premises of Buyer, Seller shall ensure that Its workers comply with all applicable OSHA regulations and with all aspects of Buyer’s safety program. The Seller will further indemnify and save harmless Buyer, its officers, employees, agents and representatives from and against any and all demands of every nature and kind arising out of a breach by Seller of its obligation herein or otherwise arising out of a breach by Seller of Its obligations herein or otherwise arising out of injury to or death of any subcontractor, employee, agent representative or invitee of the Seller or any subcontractor or the Seller while In on or near the premises or Buyer, however such Injury or death may be caused, whether caused or alleged to be caused by the negligence of Buyer or its agents, the conditions of the premises or otherwise. The Buyer, after such demand, may withhold from any amounts at the time payable to the Seller under Purchase Order each sum or sums and for such period or periods that the Buyer may deem necessary to protect the buyer against possible loss or expense, including attorney’s fees, from or in connection with any such demand. If sellers furnished in any materials or products which become a part of any material of Buyer, then Seller will further Indemnify and save harmless Buyer, its employees, agents, representatives from and against any and all demands of every nature and kind arising out of the Injury to and/or death or property damage to any third person. if said Injury, death and/or property damage Is In any way caused from any act of omission on the part of the Seller, its agents, employees. or subcontractors, except to the extent that any loss or damage is due solely and directly from the active negligence of Buyer. This indemnification Includes, but is in no way limited to, any defective materials, products and service in either manufacture or design.
Seller agrees to protect and save harmless Buyer against all claims (Including from Attorney’s fees and expenses) for patent, trademark, copyright or franchising infringement arising out of the purchase, installation or use of the materials ordered. and to assume all expenses and damages arising from such claims.
XI. Complete Agreement
Purchase Order, Including Any continuation attached, shall constitute buyer’s offer to Seller, and become a binding contract on the terms and conditions set forth herein, upon Seller’s written acceptance thereof or commencement of performance. No revision, modification, termination, or waiver of the provisions of Purchase Order or any or terms and conditions thereof shall be valid unless inwriting and signed by an authorized representative of Buyer and no condition stated by Seller In accepting or acknowledging Purchase Order shall be binding upon Buyer if in conflict with and/or inconsistent with and/or in addition to the terms and conditions unless expressly accepted in writing by Buyer. Seller’s quotation is incorporated only insofar as It is specifically stated. No other terms or conditions are binding on Buyer UNLESS ACCEPTED by it IN WRITING. Purchase Order and this contract contains the entire agreement of the parties. No modification or waiver shall be deemed affected by Seller’s acknowledgement or confirmation containing other or different terms.
The quantity of material ordered or released must not be exceeded and Buyer shall not be liable for or may reject any material delivered in excess of that so ordered or released, subject to a deviation of plus or minus ten percent (10%) not to exceed one thousand US dollars ($1,000) at Buyers sole discretion.
Purchase Order must not be filled at higher prices than quoted or charged without a thirty (30) day written notice and subject lo Buyer’s right to reject such price increase and to terminate Order without recourse by Seller. If no price is stated on Order, Seller agrees to Invoice at the lowest prevailing market price. In the event Seller, during the performance of its obligations under Order, reduces its price of materials supplied or services furnished of the same quantity, grade and quality. Seller agrees to give Buyer the benefit or such reduction in price.
XIV. Other charges
Unless stated on Purchase Order. no charge will be allowed for prototype. first article, minimum lot, surcharges, purchase order revision, cancellation, expedite. Incentive, performance, patterns, tools, jigs, fixtures, gages, packing, crating, drayage or storage.
If Seller ceases to conduct Its operation and normal course of business, Including ability to meet its obligations as they mature, or If any proceedings under bankruptcy or insolvency laws are brought by or used against Seller, or receiver for Seller is applied for or any assessment for the benefit or creditors is made by the Seller, Buyer may terminate order without liability except for deliveries previously made or for goods covered by Order then completed and subsequently delivered in accordance with the terms thereof. If the goods covered by order are standard stock merchandise, Buyer may terminate all or any part of the unshipped portion order at any time by written notice to Seller, and in such event Buyer shall have no further obligation for cancellation charges otherwise except to make payments subject to other applicable terms hereof, for the goods actually shipped and In transit prior to such termination.
Title to the materials and supplies purchased hereunder shall pass directly from Seller to Buyer at the delivery point as specified on the face of Purchase Order, subject to Buyer’s right of inspection.
XVII. Shipping instructions
Shipment must be made as specified on the face of Purchase Order unless subsequently modified in writing by Buyer.
XVIII. Discount Terms
Discount terms are shown on face of Purchase Order. If no terms are specified and unless Invoice specifically stated deferent terms, invoices are subject to cash discounts of two percent (2%) net ten (10) days after actual cash receipt of goods or services or after receipt of invoices whichever Is received later.
XIX. Preservation and Packaging
All items procured under Purchase Order shall be packaged and packed best commercial pack at no additional charge to the Buyer. Such procedure shall require the inclusion of a packing list In each box shipped which indicates the contents thereof.
XX. Compliance with Applicable laws
Seller agrees that in the performance of this contract It shall comply with all the applicable laws, statutes, rules and regulations or orders of the United States government or any state or political subdivision thereof without limiting the generality of the foregoing.
XXI. Documentation Requirements
Seller agrees to furnish all documentation as Buyer may require Including, but not necessarily limited to, Material Test Reports (MTR’s) Certificates of Conformance, Compliance, origin, etc. Seller agrees that Buyer may withhold payment of Invoice until all documentation requirements are satisfied and that timeframe for discount terms will not commence until all acceptable documentation is received.
XXII. Right of Set-Off
Buyer, at all times, shall be entitled to set-off against any amounts Buyer owes to Seller on account of goods or services provided by Seller under this order any other amounts which Buyer reasonably believes to be owed to Buyer by Seller under the terms and conditions of this order between Buyer and Seller.
Valiant Artificial Lift Solutions LLC
USA STANDARD TERMS AND CONDITIONS OF SALE
In these Standard Terms and Conditions:
“Buyer” means the person, firm or company with whom the Contract is made;
“Buyer Group” means the Buyer, its co-venturers, its and their respective affiliates and agents and its and their respective directors, officers and employees;
“Contract” means the entire agreement between the Seller and the Buyer for the sale and purchase of the Products and/or Services, as more particularly described in Section 15 below;
“Order Acknowledgment” means the written acceptance by Seller of Buyer’s purchase order or specification, which automatically incorporates these Standard terms and Conditions as provided in Section 2 below;
“Product(s)” means any products or parts agreed in the Contract to be supplied to the Buyer by the Seller;
“Seller” means the selling entity identified in the Order Acknowledgment, or if none, the quotation;
“Seller Group” means the Seller, its sub-suppliers, its and their respective affiliates and agents, and its and their respective directors, officers and employees;
“Services” means any services agreed in the Contract to be supplied to the Buyer by the Seller;
“Special Conditions” means those Special Terms and Conditions (if any) set out in the Order Acknowledgment or other document issued by the Seller.
Subject to any variation under Section 2.3, the Contract shall incorporate and be subject to these Standard Terms and Conditions to the exclusion of all other terms and conditions (including any terms and conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other documents shall form part of the Contract simply as a result of such document being referred to in the Contract.
These Standard Terms and Conditions apply to all of the Seller’s sales, and any variations to these Standard Terms and Conditions and any representations about the Products shall have no effect unless expressly agreed in writing and signed by an authorized signatory of the Seller. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in writing in the Contract.
Each order or acceptance of a quotation for Products by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Products subject to these Standard Terms and Conditions.
No order placed by the Buyer shall be deemed to be accepted by the Seller until an Order Acknowledgment is issued by the Seller, or (if earlier), the Seller delivers the Products or Services to the Buyer.
The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
Any quotation is given on the basis that no Contract shall come into existence until the Seller dispatches an Order Acknowledgment or delivers the Products or Services to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Seller has not previously withdrawn it. All quotations of Seller are subject to change at any time.
All prices are subject to change without notice. Prices do not include packing and preparation of export shipment, inland or ocean freight, loading, unloading, carriage, insurance or forwarding fees, taxes, or duties of any kind or other similar charges applicable to the Products, Services and/or the Contract. Buyer agrees to pay such charges incurred by Seller on Buyer’s behalf together with additional handling charges upon receipt of Seller’s invoice for the same.
TERMS OF PAYMENT
Unless Seller and Buyer otherwise agree in writing to payment terms other than those specified herein, payment shall be made in U.S. Dollars in accordance with remittance instructions furnished by Seller.
All payments shall be made within thirty (30) days after date of Seller’s invoice.
Time for payment shall be of the essence.
Seller may suspend credit to Buyer and may withhold shipment of Products ordered, suspend or cancel performance under the Contract if in its sole judgment the financial condition of the Buyer warrants such action. Suspension of performance may result in rescheduling delays.
Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. Seller will add taxes to the price where required by applicable law, and Buyer will pay all such taxes unless Buyer provides Seller with a duly executed tax exemption certificate in a form satisfactory to the Seller. If Buyer is required by applicable law to withhold any amount of tax from its payment to Seller, Buyer shall promptly pay such amount to the appropriate tax authority and take all reasonable steps to minimize such withholding tax. Buyer shall take all steps required to promptly obtain and deliver to Seller the appropriate certification of any such withholding in a form satisfactory to the Seller.
The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.
If the Buyer fails to pay the Seller any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Seller on such sum from the due date for payment at the rate of eighteen percent (18%) per annum or, if less, at the highest rate allowed by law.
PRODUCTS: SHIPPING, DELIVERY, TITLE & RISK OF LOSS
Products shall be delivered EXW (at location named by the Seller) (Incoterms 2010). Risk of loss or damage shall pass to Buyer upon Seller’s delivery to Buyer. Except as otherwise provided in this Section, title shall pass when the delivery obligations are met. For shipments that involve export from a Seller facility or warehouse outside the U.S., title shall pass to Buyer upon delivery in accordance with this section. For shipments from the U.S. to another country, title shall pass to Buyer immediately after each item departs from the territorial land, seas and overlying airspace of the U.S. For this purpose, the Parties acknowledge that the territorial seas of the United States extend to twelve nautical miles from the baseline of the country determined in accordance with the 1982 United Nations Convention of the Law of the Sea.
Seller may deliver the Products in installments. Each installment shall be a separate Contract and no cancellation or termination of any one Contract relating to an installment shall entitle the Buyer to repudiate or cancel any other Contract or installment. Delivery dates are intended to be an estimate and time and date for delivery shall not be made of the essence by notice or otherwise and are dependent on prompt receipt by Seller of all information and assistance required or requested by Seller to permit Seller to carry out its obligations under the Contract. Seller shall not be liable for any damage, losses or expenses incurred by Buyer if Seller fails to meet the estimated delivery dates.
In the event that Products are not collected by Buyer on actual date of delivery, Seller may (at its sole discretion) place Products in storage at the sole cost, expense and risk of the Buyer.
The supply of rental equipment (“Equipment”) by the Seller is subject to availability of Equipment at placement of order. The rental period commences on the date that Equipment is available for collection EXW (Incoterms 2010) or dispatched from Seller’s facility and terminates on the return of Equipment in its entirety to the originating Seller facility in good order.
The Buyer agrees to supply at its cost all necessary resources to safely mobilize Equipment to Buyer’s work site and to return such Equipment to Seller’s designated facility. This includes but is not limited to all relevant shipping containers, crossovers, umbilical clamping, sampling kits, handling equipment and, where flow bases are to be run, a suitable function reel and associated equipment. Any other equipment not specifically included in this quotation, but deemed necessary to fulfill the Contract safely and on time will be charged to the Buyer’s account.
Buyer shall be responsible for the provision of all export/import license requirements.
Installation: Seller shall provide advice on the installation, removal or operation of the Equipment. Seller shall have free access to the Buyer’s installation site at all times and shall have the right to order Buyer to stop the use of the Equipment, at Seller’s sole discretion, if such action is necessary to safeguard Seller’s interests therein. Buyer shall pay Seller the cost of transportation, and field service charges at Seller’s published rates for the time in transit and at the Buyer’s installation site for Seller’s representative providing the field service for the Equipment.
Use and Operation: Buyer will exercise care in the use and operation of the Equipment. Regular production and operation data, shall be provided to Seller upon Seller’s request. Buyer agrees not to adjust the operational parameters (ex. overload, underload, or restart settings, etc.) without agreement of Seller.
Risk of Loss: During the period commencing on the delivery of the Equipment to Buyer and ending on the date that Buyer returns the Equipment to Seller as provided for in the Contract, Buyer will bear the responsibility of all damage to or loss of the Equipment except for normal wear, as determined by Seller based upon data provided by the Buyer, and Seller’s evaluations made pursuant to standard dismantle and inspection procedures. Damages to the Equipment determined to be caused by parted tubing, casing problems, well or operating conditions or the Buyer operating equipment outside of specified parameters or standard industry operating procedures, resulting in the loss or damage of the Equipment, will be billed to Buyer at Seller’s replacement costs using Seller’s published pricing. Submersible Equipment that has been dropped down hole will be charged to Buyer for replacement at Seller’s published pricing, plus incidental recovery charges incurred by Seller.
Additional Charges: Buyer shall pay all freight charges. Buyer will pay Seller’s published list price for items not returned including, but not limited to, shipping boxes, cable reels, and cable reel supports. Buyer will purchase from Seller all consumable items including, but not limited to, flat cable extensions, cable guards, and check and bleeder valves. Buyer shall be responsible for all third party charges, such as installation, crane, backhoe, pulling unit, spooler, pneumatic bander, blowout preventers, etc. Buyer shall pay all equipment testing charges for surface pumping systems and those for down hole systems in the event it is deemed necessary upon the pulling of the well for well work or low production.
Power Issues: Buyer will be responsible for Equipment replacement due to power issues including but not limited to lightning or power failures.
Indemnification: Buyer will indemnify Seller and hold Seller harmless in respect of any liability, damage, expense or judgment arising from injury to any person or damage to any property caused by the Equipment or otherwise arising from Buyer’s possession, use or operation of the Equipment.
Title: Buyer agrees not to sell, assign, let, transfer, mortgage, charge, part with or lose possession of the Equipment. Title to the Equipment remains with Seller. Buyer will not obscure, alter or remove any label or similar visual indication of Seller’s ownership from the Equipment.
Seller reserves the right to defer the date of delivery of Products and/or the date of performance of Services, to cancel the Contract, or reduce the volume of the Products and/or amend the scope of the Services ordered by Buyer (without liability to Buyer) if it is prevented from or delayed in the carrying out of its business due to circumstances beyond its reasonable control, including but not limited to, natural disasters, forces of nature, earthquake, tidal wave, landslide, flood, lightning, hurricane, typhoon, storm or other weather condition not included in normal planning, epidemic and plague; changes in law or regulations, governmental actions; acts of civil or military authority; fire; explosion; lock-outs, strikes and/or labor disputes (whether or not relating to either party’s workforce); civil commotion; protests; war; national emergency; riot; civil insurrection; acts of terrorism; restraints or delays in transportation; restraints or delays in manufacturing and inability of Seller to obtain adequate or suitable supplies from usual sources, or acts of Buyer resulting in commercial impracticality. In the event of any such delay, the date of delivery and/or performance shall be deferred for a period equal to the time lost by reason of the delay.
Seller warrants that Products manufactured by Seller or Equipment supplied by Seller, when properly stored, commissioned, installed, used and maintained, and Services performed by the Seller, shall be free from defects in material and workmanship. Seller’s obligation under this warranty shall be limited to replacing or repairing the part or parts or the Products or Equipment, at Seller’s option, which prove to be defective in material or workmanship within twelve (12) months from the date of installation or eighteen (18) months from the date of delivery, whichever shall occur first, or reperforming Services within twelve (12) months of the Services being supplied (“WARRANTY PERIOD”), provided the Buyer gives Seller prompt notice of any defect and provides proof in form and substance satisfactory to the Seller (acting in its sole discretion) including all relevant data and documentation needed to assess well and equipment performance and operations. Any defective part or parts must be returned freight prepaid by Buyer to an authorized service center designated by Seller for inspection. Seller will deliver any replacements for defective Products or Equipment to Buyer prepaid to the delivery destination provided by the original order. Products returned to the Seller for which Seller provides replacement under this warranty shall become the property of the Seller.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR GUARANTEES, WHETHER ORAL, WRITTEN, EXPRESSED, IMPLIED OR STATUTORY, AND SELLER MAKES NO WARRANTY AS TO FITNESS FOR PURPOSE OR MERCHANTABILITY. SELLER’S WARRANTY OBLIGATIONS AND BUYER’S REMEDIES ARE SOLELY AND EXCLUSIVELY AS STATED HEREIN.
THE WARRANTY PERIOD SHALL NOT BE EXTENDED FOR REPAIRED OR REPLACED PARTS, PRODUCTS OR EQUIPMENT OR REPERFORMED SERVICES. SUCH PARTS, PRODUCTS, EQUIPMENT OR SERVICES SHALL REMAIN UNDER WARRANTY ONLY FOR THE UNEXPIRED PORTION OF THE ORIGINAL WARRANTY PERIOD. SELLER’S SOLE LIABILITY SHALL BE AT ITS OPTION TO REPAIR OR REPLACE PARTS, PRODUCTS OR EQUIPMENT OR REPERFORM SERVICES UNDER THIS CONDITION. SELLER MAY IN ITS SOLE DISCRETION CREDIT BUYER’S ACCOUNT FOR A PORTION OF SUCH PARTS, PRODUCTS, EQUIPMENT AND/OR SERVICES DETERMINED BY SELLER TO BE DEFECTIVE.
The foregoing warranty does not apply to: (a) defects caused or contributed to by abrasive materials, corrosion due to aggressive fluids, lightning, improper voltage supply, mishandling or misapplication; (b) Products or parts which are normally consumed in operation, or have a normal life inherently shorter than the WARRANTY PERIOD; (c) alterations or repairs carried out without prior written approval of the Seller, or using equipment and accessories for a purpose other than that for which such equipment and accessories are intended; (d) installations carried out by the Buyer unless Buyer’s engineers have been appropriately trained and certified by Seller; (e) installations in which Buyer has not used the application engineering practices for the Products or Equipment as approved by Supplier; (f) defective Products, Equipment or Services where Buyer makes further use of the Products, Equipment or Services after the earlier of the Buyer’s awareness of the defect or the time when the Buyer reasonably should have become aware of such defect; or (g) defects arising from or in connection with information, drawings, chart interpretations, technical specifications or instructions provided by the Buyer to the Seller.
LIMITATION OF LIABILITY
FOR THE PURPOSE OF THIS SECTION 9, THE EXPRESSION “CONSEQUENTIAL LOSS” SHALL MEAN (IN EACH CASE WHETHER OR NOT FORESEEABLE AT THE DATE OF THE CONTRACT): (a) ANY AND ALL CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE AND/OR SPECIAL LOSS AND/OR DAMAGE; AND (b) LOSS AND/OR DEFERRAL OF PRODUCTION, LOSS OF PRODUCT, LOSS OF GOODWILL, LOSS OF USE, LOSS OF REVENUE, PROFIT OR ANTICIPATED PROFIT, AND COST OF CAPITAL, IN EACH CASE WHETHER DIRECT OR INDIRECT TO THE EXTENT THAT SUCH LOSS, DEFERRAL AND/OR COST ARE NOT INCLUDED IN CLAUSE (a); AND (c) CLAIMS FOR SERVICE INTERRUPTION OR FAILURE TO SUPPLY, COSTS AND EXPENSES INCURRED IN CONNECTION WITH LABOR OVERHEAD, TRANSPORTATION OR SUBSTITUTE FACILITIES OR SUPPLY SOURCES, LABOR PERFORMED IN CONNECTION WITH THE REMOVAL AND REPLACEMENT OF PRODUCTS WITHIN THE WELL OR ANY OTHER LOSS OR DAMAGE INCURRED AS A RESULT OF OR OTHERWISE IN CONNECTION WITH INTERRUPTION OF SERVICE IN EACH CASE TO THE EXTENT THAT SUCH CLAIM IS NOT INCLUDED IN CLAUSE (a) OR CLAUSE (b).
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY ELSEWHERE, IN NO CASE WILL THE SELLER BE LIABLE FOR CONSEQUENTIAL LOSS AND BUYER SHALL BE LIABLE FOR AND SHALL SAVE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE SELLER GROUP FROM AND AGAINST ANY AND ALL CONSEQUENTIAL LOSS EVEN IF CAUSED BY THE SELLER’S SOLE, JOINT, COMPARATIVE, CONTRIBUTORY OR CONCURRENT NEGLIGENCE, FAULT, STRICT LIABILITY OR PRODUCT LIABILITY, AND REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, INDEMNITY, STATUTE, STRICT LIABILITY OR OTHERWISE.
THE TOTAL LIABILITY OF SELLER ON ANY CLAIM WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE WHETHER SOLE OR CONCURRENT) OR OTHERWISE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT OR USE OF ANY PRODUCT, OR THE FURNISHING OF ANY SERVICE, OR THE PERFORMANCE OR NON-PERFORMANCE OF THE CONTRACT SHALL NOT EXCEED THE PRICE RECEIVED BY THE SELLER AND ALLOCABLE TO THE PRODUCT OR PART THEREOF, OR THE COST OF FURNISHING OF ANY SERVICE WHICH GIVES RISE TO THE CLAIM.
BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THE CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THE CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
All exclusions and indemnities given under this Section 10 (save for those under Sections 10.1(c) and 10.2(c)) and Section 8, respectively, shall apply irrespective of cause and notwithstanding the negligence or breach of duty (whether statutory or otherwise) of the indemnified party or any other entity or party and shall apply irrespective of any claim in tort, under contract or otherwise at law. For the purposes of Sections 10.1(c) and 10.2(c), “third party” shall mean any party which is not a member of either the Buyer Group or the Seller Group.
The Seller shall be responsible for and shall save, indemnify, defend and hold harmless the Buyer Group from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities in respect of:
subject to Section 10.2(d), loss of or damage to property (other than the Products after delivery pursuant to Section 5 or Section 6, as applicable) of the Seller Group whether owned, hired, leased or otherwise provided by the Seller Group arising from or relating to the performance of the Contract;
personal injury including death or disease to any person employed by the Seller Group arising from or relating to the performance of the Contract; and
subject to Section 10.3, personal injury including death or disease or loss of or damage to the property of any third party to the extent that any such injury, loss or damage is caused by the negligence or breach of duty (whether statutory or otherwise) of the Seller Group.
Buyer shall be responsible for and shall save, indemnify, defend and hold harmless Seller Group from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities in respect of:
(a) loss of or damage to property of the Buyer Group, whether:
(i) owned by the Buyer Group, or
(ii) hired, leased or otherwise provided by or for the Buyer Group (including the Products after delivery pursuant to Section 5 or Section 6, as applicable); and
(b) personal injury including death or disease to any person employed by the Buyer Group arising from relating to or in connection with the performance or non-performance of the Contract;
(c) subject to any other express provisions of the Contract, personal injury including death or disease or loss of or damage to the property of any third party to the extent that any such injury, loss or damage is caused by the negligence or breach of duty (whether statutory or otherwise) of the Buyer Group; and
(d) at Seller’s option, either the repair or replacement or reimbursement of the full cost of Seller’s equipment, tools and/or instruments which are lost or damaged down-hole in the Buyer’s well during the provision of Services or are lost or damaged due to abrasion or corrosion occasioned by well effluents unless such loss or damage is due to the sole negligence of the Seller.
Notwithstanding Section 10.1, Buyer shall be liable for, and shall defend, indemnify and hold Seller Group harmless from and against, any and all claims which arise out of the performance or non-performance of the Contract in relation to the following, and whether or not resulting from, or contributed to by, the negligence of Seller Group: (i) loss of or damage to any well or hole or any third party oil and gas production facilities; (ii) reservoir seepage or pollution originating underground or from the property of the Buyer or third party howsoever arising; (iii) blow-out, fire, explosion, cratering of any well or reservoir or any other uncontrolled well condition (including the costs to control a wild well and the removal of debris); and (iv) damage to or escape of product, or substance from any facility including any pipeline or other subsurface facility.
Notwithstanding anything to the contrary in the Contract, Buyer shall be responsible for and shall save, indemnify, defend and hold harmless Seller Group from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities in respect of any acts or omissions of the employees or agents of the Seller Group in connection with the performance of the Services (or any part of the Services), where, in accordance with the Contract, the employees of the Seller Group are under the supervision, direction or control of the Buyer in respect of those Services or part of the Services.
The quantity of any consignment of Products as recorded by the Seller on dispatch from the Seller’s place of business or other designated location shall be conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide evidence proving the contrary. Seller shall not be liable for non-delivery of Products (even if caused by Seller’s negligence) unless Buyer gives written notice to the Seller of the non-delivery within forty-eight (48) hours of the date and time when the Product would in the ordinary course of events have been received. Any liability of the Seller for non-delivery of the Products shall be limited to, at Seller’s sole discretion, either replacing the Products or issuing a credit note against any invoice issued for the Products.
If Buyer receives a claim or otherwise becomes aware that any Product or part thereof manufactured by Seller infringes or allegedly infringes a patent or other intellectual property right, Buyer shall notify Seller immediately in writing and give Seller information, assistance and exclusive authority to evaluate, defend and settle such claim or potential infringement. Seller shall then at its own expense and option (a) settle such claim, or (b) procure for Buyer the right to use such Product, or (c) replace or modify it to avoid infringement, or (d) remove it and refund the purchase price (including transportation and installation costs) less a reasonable amount for depreciation, or (e) defend against such claim.
CANCELLATION AND CHANGES
The Buyer may not cancel or reschedule the delivery date of any Product and/or Services to be provided under the Contract without the prior written consent of the Seller. In the event that the Seller provides such consent, any such cancellation or rescheduling of Product and/or Services by Buyer will result in a charge to Buyer to be determined by the Seller. All specially designed or modified Products cancelled after commencement of manufacture will be subject to a cancellation charge which will include all costs and a reasonable margin for time employed, as determined by Seller. Cancellation charges for accessories and components sourced from third parties will be charged at full price. Seller shall, at its sole discretion, adjust the price or delivery dates or make such other amendments as may be required as a result of any change order agreed to be issued by the Buyer and Seller. No amendment to a purchase order or Order Acknowledgment or change order shall be valid unless agreed in writing by the Seller (at its sole discretion).
Any waiver by Seller of any breach or default by Buyer of any of the Buyer’s obligations under the Contract, or any failure by Seller to enforce any rights arising under the Contract shall not be construed as a waiver of any other or subsequent breach or default by Buyer or of Seller’s right to enforce its rights arising hereunder in any circumstances. In the event of any default by Buyer, Seller may decline to make further shipments. If Seller elects to continue to make deliveries, Seller’s action shall not constitute a waiver of any such default or affect Seller’s remedies for any such default.
The Order Acknowledgment, any Special Conditions and these Standard Terms and Conditions constitute the entire Contract between the Buyer and the Seller relating to the sale of the Products and/or Services and supersede all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of the Products and/or Services made by any Seller representative and not stated in the Contract shall be binding on Seller.
Buyer agrees that unless prior authorization is obtained from the U.S. Department of Commerce, neither Buyer nor its subsidiaries shall export, re-export, or release, directly or indirectly, any Product received from Seller to any destination or country to which the export, re-export or release of the technology or Product is prohibited by the Export Administration Regulations of the U.S. Department of Commerce (“EAR”), or prohibited by US or applicable non-US laws.
Buyer will be responsible for obtaining any necessary export license or other documentation prior to the exportation or re-exportation of any Product acquired from Seller under the Contract. Further, Buyer shall give notice of the need to comply with such laws and regulations to any person, firm or entity which it has reason to believe is obtaining any such Product from Buyer with the intention of exportation. Each party shall secure, at its own expense, such licenses and export and import documents as are necessary for each respective party to fulfill its obligations under the Contract. If approvals cannot be obtained, Seller may terminate, cancel or otherwise be excused from performing any obligations it may have under the Contract. Any export classification made by Seller shall be for Seller’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such Product or whether an export license or other documentation is required for the exportation of such Product. This Section 16 shall survive termination of the Contract.
Neither Seller nor Buyer shall make any payment or take any action that could be construed to be the payment of money or other thing of value to any government official, political party, or political party candidate for the purpose of influencing any act or inducing any government official to use his or its influence to assist in obtaining or retaining business in any country in a manner which is illegal or which would subject the Seller to civil or criminal penalties, or which is inconsistent with Seller’s Business Ethics Policy.
The Seller may assign the Contract or any part of it to any person, firm or company. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
The parties agree that any and all disputes or controversies that may arise between the parties arising out of or related to the Contract shall be determined by binding arbitration. Any such arbitration shall be conducted in accordance with the rules of the American Arbitration Association then in effect, with each party nominating one arbitrator and the two arbitrators nominating a third, and any arbitration proceedings shall be held in Oklahoma City, Oklahoma. Judgment upon arbitration awards may be entered in any court, state or federal, having jurisdiction.
The Contract shall be governed and construed in accordance with the laws of the State of Oklahoma, without giving effect to any conflicts of laws principles.
All samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products and/or Services described in them. They shall not form part of the Contract.
The Buyer shall at its own expense secure any permits or any other authorizations (including but not limited to work permits and visas for employees of the Seller) which may be required to permit the Seller to perform the Services. The Buyer agrees to indemnify the Seller against any costs, claims, actions, demands or expenses incurred or suffered in connection with the Buyer’s failure to obtain any permits or authorizations required to perform the Services.
Buyer agrees to allow Seller and its authorized agents to reference Buyer’s company name in internal and external publications, advertisements, case studies, trade journals and any other public facing materials. Seller may seek to use Buyer’s quotes in written publications. In these instances, the person providing the quote would be the approver of said quote.
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, or unenforceable it shall to the extent of such illegality, invalidity, voidness, voidability, or unenforceability be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force.
These Standard Terms and Conditions are subject to change without prior written notice at any time and from time to time at the Seller’s sole discretion; provided, however, that any such changes shall have prospective application only and shall not affect any Products or Services already ordered pursuant to the Contract. All communications between the parties about the Contract shall be in writing and delivered by hand or sent by fax to its registered office or such other address as shall be notified to the other party. Communications shall be deemed to have been received if delivered by hand, on the day of delivery or if sent by fax on a business day at the time of transmission and otherwise on the next working day.