GENERAL TERMS AND CONDITIONS FOR SUPPLY OF GOODS
1. DEFINTIONS. As used in these General Terms and Conditions for Supply of Goods, the following words and phrases shall have the meanings stated below.
“Agreement” means these General Terms and Conditions for Supply of Goods entered into between the Parties.
“Affiliate” of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, control when used with respect to any specified person means the power to direct the management and policies of such person directly or indirectly, through the ownership of voting securities or the right to elect the majority of the members of the board of directors of such person; and the terms controlling and controlled have meanings correlative to the foregoing.
“Confidential Information” means any pricing, terms, information, data, trade secrets, know-how, drawings, manuals, specifications, standards, designs, plans, maps, manufacturing and production procedures and techniques, models, sketches, samples, formulations, project specific calculations, instruments, software and computer records, and other business and technical documentation, information and materials belonging to Seller, regardless of whether it is marked as confidential or not or the form in which it is communicated or maintained (whether in writing, electronically, digitally or otherwise).
“Delivery Date” means the date that the Goods are delivered to Buyer.
“Goods” means the goods that Seller has agreed to supply to Buyer under the Purchase Order.
“NORM” means naturally occurring radioactive material.
“Order Acknowledgment” means the acknowledgment form containing these General Terms and Conditions for Supply of Goods delivered by Seller to Buyer in response to a Purchase Order.
“Parties” means Buyer and Seller, collectively.
“Purchase Order” means the document issued by Buyer requesting the supply of Goods.
“Seller” means Triple-S Tube Supply, LP, a Texas limited partnership.
2. ENTIRE AGREEMENT.
(a) The Agreement represents the entire agreement of the Parties in relation to the sale of the Goods and supersedes any and all prior agreements with respect to the subject matter of the Agreement. Buyer’s acceptance of Seller’s offer or quotation containing these General Terms and Conditions for Supply of Goods, or receipt of an Order Acknowledgement without giving written objection thereto within five (5) days from receipt of the same shall constitute acceptance by Buyer of the Agreement.
(b) No representations other than those set forth in the Agreement shall be deemed made. Any conflicting terms contained in any written document (including any correspondence between Buyer and Seller), unless incorporated herein by a typed or handwritten addition hereto expressly accepted by Seller or a document signed by Seller making reference to this clause, shall be of no force or effect and these General Terms and Conditions for Supply of Goods shall apply.
3. DELIVERY OF GOODS. Seller shall deliver the Goods to Buyer within the delivery schedule set forth in the Purchase Order. If Seller for any reason anticipates difficulty in complying with the delivery schedule, Seller shall notify Buyer in writing.
4. PAYMENT.
(a) Seller shall invoice Buyer upon delivery of the Goods and Buyer will pay Seller within thirty (30) days of receipt of Seller’s invoice. Any amounts owed hereunder by Buyer shall be paid by check or wire transfer, in immediately available funds, to the bank account designated by Seller in the invoice.
(b) Interest shall accrue on the unpaid portion of the invoice at a rate of one and one-half percent (1.5%) per month (18% per annum), or, if lower, the highest rate permitted by law on past due accounts.
(c) In the event of nonpayment, Buyer agrees to pay to Seller: (1) all costs of collection and incidental damages incurred by Seller, including, but not limited to, reasonable attorneys’ fees and expenses; (2) any commercially reasonable charges, expenses or commissions incurred in stopping delivery; (3) additional transportation charges; and, (4) Seller’s net additional expense incurred for the care and custody of the Goods in connection with their return or resale. In the event of any claim or legal action brought by Buyer for any cause whatsoever, Buyer shall have no rights of retention or set-off.
5. CANCELLATION. Buyer may cancel a Purchase Order before the Goods have been cut to length, subject to acceptance by Seller and payment of a restocking fee. If Buyer wishes to cancel a Purchase Order and some but not all of the Goods have been cut to length, Buyer shall pay Seller for any Goods that have already been cut to length at the price set forth in the Purchase Order and any Goods that have not been cut to length shall be subject to acceptance by Seller and payment of a restocking fee. All cancellations and returns shall be subject to acceptance by Seller in its sole and absolute discretion. Any returns that are accepted by Seller must be made within thirty (30) days of delivery.
6. TITLE AND RISK OF LOSS. Title, and risk of loss for destruction or damage, to the Goods will pass from Seller to Buyer upon delivery of the Goods to Buyer in accordance with Section 3.
7. INSPECTION.
(a) Buyer shall (1) inspect Goods for transportation-related damage or shortage immediately upon delivery; (2) describe any such damage or shortage on the bill of lading; and (3) immediately report the damage or shortage to Seller. Buyer may not reject or revoke the acceptance of any Goods or fail to make payment for any Goods without filing a claim with proof of such damage or non-conformance. The claim must include photographs and a copy of the original bill of lading signed by Buyer noting in detail the claimed damage or non-conformance.
(b) Buyer shall provide written notice to Seller of any damaged or non-conforming Goods within five (5) days after the Delivery Date. Failure to give written notice within the aforesaid period shall release Seller from any liability thereof.
(c) Buyer agrees to set aside, protect and hold such damaged or nonconforming Goods, at Buyer’s sole cost, until Seller can make arrangements for the return of Goods to Seller’s facilities. In no event shall damaged or non-conforming Goods be returned, reworked or scrapped by Buyer without Seller’s prior written authorization.
(d) Upon notification that Buyer wishes to make a return for damaged or non-conforming Goods, Buyer shall submit its proofs of claim to Seller, as well as any additional information that Seller may reasonably require to establish the validity of the claim. Seller reserves the right to require the submission of a sample of the damaged or non-conforming Goods.
8. TAXES. Any taxes, including, but not limited to sales, use, excise, Goods and Services Tax (GST) and Value Added Tax (VAT), that Seller is required to collect or pay with respect to the sale, shipment or delivery of the Goods pursuant to the Agreement are the responsibility of Buyer, and Buyer agrees to either provide Seller with written proof of exemption from such taxes, pay such taxes directly or reimburse Seller should Seller be required by law to collect and remit such charges.
9. LIMITATION OF LIABILITY.
(a) Buyer acknowledges that (1) Seller is not the manufacturer of the Goods and (2) Seller has only cut the Goods to length and, therefore, Seller will not be liable for any defects in the Goods or any damages caused by any defects in the Goods. Buyer agrees that any claims that Buyer may have for any defects in the Goods shall be solely against the manufacturer of the Goods. Seller shall reasonably cooperate with Buyer in making any such claims against the manufacturer of the Goods so long as the same is at no cost or liability to Seller.
(b) SELLER’S LIABILITY, IN EXCESS OF THE COST TO REPLACE OR REPAIR NON-CONFORMING GOODS, FOR DAMAGES, COSTS, EXPENSES AND LOSSES HOWEVER ARISING FROM OR RELATED TO THE FULFILLMENT OR THE NONFULFILLMENT OF THE AGREEMENT, WHETHER BASED IN LAW, STATUTE, COMMON LAW, CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE LIMITED TO THE COMPENSATION OF DIRECT DAMAGES, COSTS, EXPENSES AND LOSSES AND SUCH COMPENSATION SHALL BE LIMITED TO THE AMOUNT THAT BUYER PAID SELLER FOR THE GOODS.
(c) NEITHER PARTY SHALL BE LIABLE FOR DAMAGES FOR LOSS OF PROFITS, INCOME, REVENUE OR PRODUCTION, NOR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODS OR OTHER PRODUCTS, FINANCIAL LOSS, COST OF CAPITAL, COST INCURRED IN CONNECTION WITH LABOR, OVERHEAD, GENERAL ADMINISTRATION, TRANSPORTATION, SUBSTITUTE FACILITIES, SUPPLY SOURCES) OR OTHER SIMILAR DAMAGES, WHETHER ANY SUCH LIABILITY WOULD BE BASED IN LAW, STATUTE, COMMON LAW, CONTRACT, TORT, EQUITY OR OTHERWISE.
(d) IN NO EVENT SHALL SELLER BE LIABLE FOR (1) POLLUTION, CONTAMINATION OR RADIATION DAMAGE (INCLUDING THE COST OF CONTAINMENT, CLEANUP AND DISPOSAL), AND (2) SUBSURFACE LOSS OR DAMAGE, INCLUDING LOSS OF OR DAMAGE TO ANY RESERVOIR, FORMATION, STRATA, WELL, OR BOREHOLE OR IN-HOLE EQUIPMENT, OR IMPAIRMENT OF ANY PROPERTY RIGHT TO WATER, OIL, GAS OR OTHER MINERAL SUBSTANCES, AND (3) DAMAGE, LOSS OR DESTRUCTION, OR PERSONAL INJURY OR DEATH ARISING ON THE SURFACE AS A RESULT OF SUBSURFACE OCCURRENCE (INCLUDING DAMAGE TO OR LOSS OR DESTRUCTION OF ANY EQUIPMENT, DRILLING RIG, PLATFORM OR OTHER FIXED OR FLOATING STRUCTURE AT OR AROUND THE WELL SITE), AND (4) KILLING OR REGAINING CONTROL OF A WILD WELL, OR REDRILLING, REWORKING OR FISHING (INCLUDING THE COST THEREOF).
(e) This limitation of liability is a material basis for the Parties’ bargain and reflects the bargained-for allocation of risks between Seller and Buyer, without which Seller would not have agreed to provide the Goods at the purchase price charged.
10. INDEMNITY. Buyer shall indemnify, defend, release and hold harmless Seller and its Affiliates, and their respective directors, officers, employees and agents from and against all demands, claims, suits, damages, losses, judgments and liabilities of whatever kind or nature, including, without limitation, reasonable attorneys’ fees, expenses and other costs of litigation, fines, penalties or assessments asserted against or suffered by the indemnitees by reason of, arising out of, or in any way related to, Buyer’s use (or any subsequent end-user’s use) of the Goods or Buyer’s negligence or willful misconduct. Without limitation, Buyer’s obligation to indemnify, defend, release and hold the indemnitees harmless shall exist with respect to accidents, occurrences, disease, injuries to persons (including death), environmental or other property damage, property or economic losses, and violation of applicable law or regulation.
11. WARRANTY. Seller warrants that, for a period of twelve (12) months after the Delivery Date (the “Warranty Period”), the Goods will meet the Specifications (the “Warranty”). If, within the Warranty Period, Buyer discovers any breach of the Warranty, Seller will, at Seller’s option, promptly repair or replace without cost the Goods in question or refund the purchase price paid for such Goods. Seller’s liability under the Warranty shall be limited to repair or replacement of the non-confirming Goods or refund of the purchase price paid for such Goods. In no event shall Seller be responsible for retrieving nonconforming Goods or be liable to Buyer for any delay or curtailment of operations, pollution or cost of dismantling and removal of Goods to be repaired or replaced, resulting from non-conforming Goods. EXCEPT FOR THE WARRANTY, SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, RESULT, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. THE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, TERMS, REPRESENTATIONS, GUARANTEES OR LIABILITIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY, AND SUCH OTHER WARRANTIES, TERMS, REPRESENTATIONS, GUARANTEES OR LIABILITIES, BASED IN LAW, STATUTE, COMMON LAW, CONTRACT, TORT, EQUITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE) ARE DISCLAIMED. SELLER’S WARRANTY OBLIGATIONS HEREUNDER, AND BUYER’S REMEDIES ARE SOLELY AND EXCLUSIVELY AS STATED IN THIS SECTION. Seller shall not have any warranty obligations with respect to any Good, or part thereof, which: (i) is normally consumed in operation, (ii) has a normal life inherently shorter than the Warranty Period, (iii) is not properly stored, installed, maintained or repaired, or is modified other than pursuant to Seller’s instructions or approval, or (iv) has been subjected to any other kind of detrimental exposure, or has been involved in an accident.
12. PREVENTION AND CONTROL OF RADIOACTIVE CONTAMINATION; NORM. Seller places prime importance on detecting products potentially contaminated with NORM. Buyer shall take all reasonable measures to detect and prevent from delivering to Seller any products, equipment, ancillaries, materials, personnel’s clothing (including, without limitation, the return or delivery to Seller of Goods provided by Seller to Buyer under the Agreement) potentially contaminated with NORM. Upon delivery of such products or Goods, Buyer shall provide a certificate attesting that all such products or Goods have been scanned with a detector with adequate scale to measure the values set forth herein and found to contain not more than 50 micro Rontgen (µR) per hour or 0.5 micro Sievert (µSv), including background radiation, or less of gamma radiation activity. In addition, such certificate shall include, without limitation, the following detailed information: (i) description of the analyzed material (including quantity of material); (ii) description of the performed scans; (iii) maximum values of gamma radiation activity detected, (iv) name of the company that performed the scan and name and signature of the person responsible for such scan that shall be duly qualified according to applicable local regulations; and (v) identification of the equipment used to perform the scan and the date of its latest calibration. Failure to request any such certificate shall not relieve Buyer from the strict compliance of the obligations set forth herein. Upon receipt of the certificate and before accepting the products or Goods, Seller’s representative may take all the necessary counter measures to comply with local regulations and its internal policies. If Buyer fails to provide the certificate or such certificate does not include the above mentioned information or does not certify that all products or Goods have been scanned with an adequate radioactivity detector and found to contain 50 micro Rontgen (µR ) or less per hour or 0.5 micro Sievert or less per hour (µSv ) including background radiation or less of gamma radiation activity, such products or Goods shall be considered by Seller as potentially contaminated with NORM and Seller shall, in addition to any other rights or remedies under law, be entitled to refuse delivery of products or Goods or to return to Buyer the same. All costs and expenses incurred by Seller in respect of the returned or rejected products or Goods shall be charged to Buyer. Notwithstanding the foregoing, Buyer agrees to protect, defend, indemnify and hold Seller, its Affiliates and subcontractors harmless from and against all liabilities, claims, demands, actions, damages, losses and expenses, including court costs and reasonable attorneys’ fees, of every type and character, without limit and without regard to the cause or causes thereof, which (i) arise out of or are related in any way to the subject matter of this Section and which are asserted against, or incurred by, Seller, its Affiliates or their subcontractors (including without limitation due to personal injury or death) and/or (i) Seller, its Affiliates or their subcontractors may incur as a consequence of or in connection with the breach of any of the above mentioned obligations, WHETHER OR NOT CAUSED BY THE JOINT AND/OR CONCURRENT NEGLIGENCE OF THE SELLER, ITS AFILIATES AND SUBCONTRACTORS. If local regulations set stricter requirements than those established herein, local regulations shall be followed by Buyer.
13. EXPORT CONTROL. Any sale hereunder shall at all times be in strict conformity with all relevant export control laws and regulations. Buyer shall at all times in connection with the performance of the Agreement be in compliance with all economic sanctions and export control regimes applicable to any party to the Agreement, including but not limited to the United Nations, United States, and European Union regimes. Buyer shall not make any disposition by way of trans-shipment, re-export, diversion or otherwise, of the Goods, except as said laws and regulations may expressly permit, and no such disposition or transfer will be made other than to the ultimate country of destination specified in the Purchase Order or as declared as the country of ultimate destination on Seller’s invoice. Any act or omission or failure of Buyer to act in compliance with the foregoing that results in Seller, including its Affiliates, or any of the parties involved in the transaction (“Indemnified Parties”) being subject to any governmental or authority investigation or violation of applicable laws, including, without limitation, the imposition of fines and penalties, Buyer shall reimburse all Indemnified Parties for and release, defend, indemnify and hold harmless the Indemnified Parties (including banks involved) against any claim, demand, liability, loss or damage imposed by the applicable governmental authority arising out from such an action, omission or failure to act or as a result of Buyer’s breach of its obligations under this Section. Neither Seller nor any of the Indemnified Parties assume any liability to Buyer or to any other person for Buyer’s acts of non-compliance with export control laws, sanctions, restrictive measures and embargoes.
14. FORCE MAJEURE. Seller is not liable for a failure to perform any of its obligations in so far as Seller proves (i) that the failure was due to an impediment beyond its control; (ii) that it could not reasonably be expected to have taken the impediment and its effects upon its ability to perform into account at the time of the execution of the Agreement, and (iii) that it could not reasonably have avoided or overcome it or at least its effects; including, but not limited to, pandemics, epidemics, war, whether declared or not, civil war, riots and revolutions, acts of piracy, acts of sabotage, natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning, explosions, fires, breakdown or destruction of machines, of factories, and of any kind of installations boycotts, strikes and lock-outs of all kinds, work slowdowns, occupation of factories and premises, and work stoppages which occur in Seller’s enterprise, lack of or inability to obtain raw materials, fuels or supplies, acts of Buyer or civil or military authority, whether lawful or unlawful, apart from acts for which Seller has assumed the risk by virtue of other provisions of the Agreement. A ground of relief under this clause relieves Seller from damages, penalties and other contractual sanctions to the extent that the ground persists. Further it postpones the time for performance, for such period as may be reasonable, thereby excluding Buyer’s right, if any, to terminate or rescind the Agreement. If the grounds of relief persist for more than sixty (60) days, either Party shall be entitled to terminate the Agreement with prior written notice. Each Party may retain what it has received from the performance of the Agreement carried out prior to the termination. Each Party must account to the other for any unjust enrichment resulting from such performance. The payment of the final balance shall be made without delay.
15. CONFIDENTIALITY.
(a) Buyer acknowledges that in connection with the sale of the Goods, Buyer has received or will receive from Seller certain proprietary and Confidential Information, which is of substantial proprietary value to Seller.
(b) Buyer agrees to hold in strict confidence, and not to disclose to third parties or use for any purpose other than the purpose of the Agreement, any Confidential Information.
(c) Buyer shall be liable for any loss or damage to any Confidential Information, and shall not be released from its obligations of confidentiality, non-use and non-disclosure until and unless: (i) Confidential Information becomes non-confidential information without any breach of this Agreement or (ii) Seller releases Buyer from its confidentiality obligations hereunder by written notice.
(d) All technical documents developed by Seller and to be provided to Buyer as part of the obligations assumed hereunder, including any copyright therein, shall be the sole property of Seller and shall always he treated as confidential.
16. ASSIGNMENT. Buyer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Seller. Any purported assignment or delegation is null and void. No assignment or delegation shall relieve Buyer of any of its obligations under the Agreement.
17. GOVERNING LAW. THE AGREEMENT SHALL BE GOVERNED BY, AND CONFIRMED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD FOR ITS CONFLICTS OF LAWS PROVISIONS.
18. DISPUTES. THE PARTIES AGREE THAT IN THE EVENT OF A DISPUTE OR ANY ALLEGATION OF BREACH CONCERNING THE PARTIES’ PERFORMANCE UNDER THE TERMS OF THE AGREEMENT, THAT THE PARTIES SHALL, FOR A PERIOD NOT TO EXCEED THIRTY (30) DAYS FOLLOWING NOTICE BY ONE PARTY TO THE OTHER PARTY THAT A DISPUTE EXISTS, ENDEAVOR TO RESOLVE SUCH DISPUTE THROUGH GOOD FAITH NEGOTIATIONS. IN THE EVENT THAT THE PARTIES FAIL TO RESOLVE THEIR DISPUTE IN THE FOREGOING MANNER, THE ALLEGED BREACH OR DISPUTE SHALL BE SUBMITTED TO MEDIATION AND, IF THE BREACH OR DISPUTE IS NOT RESOLVED BY MEDIATION, THE PARTIES WILL SUBMIT THE BREACH OR DISPUTE TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS IN HARRIS COUNTY, TEXAS AND THE FEDERAL COURTS IN AND FOR THE SOUTHERN DISTRICT OF TEXAS (HOUSTON DIVISION).
19. DEFAULT.
(a) If Buyer defaults in any of its obligations under the Agreement, Seller shall be entitled to (i) terminate totally or partially its obligations under the Agreement and any other agreements with Buyer or (ii) suspend totally or partially deliveries of Goods under the Agreement and any other agreements with Buyer. For such purposes, Seller will give Buyer written notice of termination or suspension, which shall become effective if Buyer does not remedy its default within thirty (30) days from receipt of Seller’s notice.
(b) If Seller fails to commence actions to remedy any default of its obligations under the Agreement within thirty (30) days from written notice given by Buyer, then Buyer may terminate the Agreement without penalty or liability except for amounts payable in respect of Goods previously supplied to Buyer.
(c) In the event that Buyer becomes voluntarily or involuntarily the subject of proceedings under any bankruptcy or insolvency law, or other legal procedure for the relief of financially distressed debtors, or is unable, or, admits in writing its inability, to pay its debts as they mature, or takes or suffers any action for its liquidation or dissolution, or has a receiver or liquidator appointed for all or any part of its assets and, in the event any act of the aforesaid character is involuntary, then Seller will be entitled to immediately terminate the Agreement by giving it written notice of termination.
20. SEVERABILITY. The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of any other provision of the Agreement. If any part of the Agreement cannot be legally enforced, the Parties agree that the provision will be deemed modified as necessary to make it enforceable while remaining as consistent as possible with the intent as expressed in the Agreement.
STANDARD TERMS AND CONDITIONS OF PURCHASE
THE FOLLOWING STANDARD TERMS AND CONDITIONS OF PURCHASE (“TERMS AND CONDITIONS”) SHALL BE DEEMED INCORPORATED INTO AND SHALL FORM A PART OF EACH PURCHASE ORDER OR CONTRACT (“PURCHASE ORDER”) ISSUED BY TRIPLE-S TUBE SUPPLY, LP (“BUYER”), UNLESS OTHERWISE SPECIFIED IN THE PURCHASE ORDER:
1. DEFINITIONS: For purposes of these Terms and Conditions: “Goods” shall refer to all goods, articles, materials, parts, components, accessories and other items to be sold and all other deliverables to be provided to Buyer under the terms of the Purchase Order. “Services” shall refer to all services of any nature to be provided under the Purchase Order, including designing, assembling, processing, installing and testing any of the Goods. “Work” shall refer to and include the Goods and the Services. “Seller” shall refer to the supplier, vendor, contractor or subcontractor providing or performing the Work under the Purchase Order.
2. ORDER / ACCEPTANCE / APPLICABLE TERMS: BUYER OFFERS TO PURCHASE THE GOODS AND/OR SERVICES (COLLECTIVELY, THE “WORK”) DESCRIBED IN THE PURCHASE ORDER ONLY UPON THE TERMS AND CONDITIONS CONTAINED HEREIN. BUYER RESERVES THE RIGHT TO REVOKE THE PURCHASE ORDER WITHOUT NOTICE BEFORE ACCEPTANCE. THE PURCHASE ORDER SHALL BE DEEMED AGREED TO AND ACCEPTED BY SELLER AND BECOME A BINDING CONTRACT ON THE TERMS AND CONDITIONS CONTAINED HEREIN WHEN (1) SIGNED AND RETURNED TO BUYER, OR (2) SELLER ISSUES ITS ORAL OR WRITTEN ACKNOWLEDGMENT, OR (3) SELLER COMMENCES PERFORMANCE, OR (4) SELLER OTHERWISE ACCEPTS THE PURCHASE ORDER. BY ACCEPTING THE PURCHASE ORDER, SELLER WAIVES ALL TERMS AND CONDITIONS CONTAINED IN ITS QUOTATION, ACKNOWLEDGMENT, INVOICE, OR OTHER DOCUMENTS WHICH ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED HEREIN, AND ALL SUCH DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS SHALL BE NULL AND VOID. All special terms and conditions or supplemental attachments which are attached to or referenced in the Purchase Order are made a part of the contract between the Buyer and the Seller as though fully set forth herein.
3. PRICE: Unless otherwise stated on the Purchase Order, all payments shall be made in legal tender of the United States of America at the address shown on the Purchase Order. Any payment provided in the Purchase Order shall be due within sixty (60) days after the latter of (1) the date of receipt of an acceptable invoice, (2) the date acceptable Work is received or completed, or (3) the date Work is scheduled to be received or completed. Buyer shall have the right to set off against, or appropriate and apply to the payment or performance of any obligation, sum or amount owing at any time to Buyer under the Purchase Order or any other contractual agreement between Buyer and Seller, all deposits, amounts or balances held by Buyer for the account of Seller or any of Seller’s affiliates and any amounts owed by Buyer to Seller or any of Seller’s affiliates, whether arising under the Purchase Order or otherwise, regardless of whether any such deposit, amount, balance or other amount or payment is then due and owing.
4. WARRANTY: Without limiting any warranties implied by law with respect to the Goods purchased and/or delivered hereunder, Seller warrants to Buyer, its customers, and their successors and assigns, that all Goods purchased and/or delivered hereunder shall (1) be new and unused, (2) be free and clear of liens and encumbrances and all claims of Seller and any third parties, (3) be of merchantable quality, (4) be free from defects in material and workmanship and, to the extent such Goods are not manufactured pursuant to detailed designs of Buyer or its customers, be free from defects in design, (5) conform strictly to all specifications, drawings, samples or descriptions furnished to Seller by Buyer and to all other requirements of the Purchase Order, and (6) be fit for the purposes of Buyer. Seller further warrants it has good and marketable title to all Goods sold and/or delivered hereunder and that no statute, order, regulation, or ordinance of any governmental body or agency has been violated in the manufacture, sale, and/or delivery of any Goods hereunder. Additionally, if and to the extent the Work includes Services supplied by Seller, Seller expressly warrants to Buyer, its customers, and their successors and assigns, that all such Services furnished: (a) have been performed or prepared in a professional and workmanlike manner by personnel who are adequately trained, supervised and experienced and according to best industry standards and practices; (b) are suitable for the purposes intended whether expressed or implied, and (c) are in compliance with all applicable specifications and performance requirements. Seller agrees that Buyer’s approval of any designs or drawings furnished by Seller hereunder or in contemplation hereof shall not relieve Seller of its obligations under this warranty. The foregoing warranties are in addition to any other representations and warranties in the Purchase Order or provided under law. Seller hereby agrees that, in addition to any other remedies which Buyer may have against Seller for breach of warranty, Seller will repair or replace at the option of the Buyer and at cost to the Seller, any or all the Work found in the sole judgment of the Buyer to be in breach of this warranty, and to indemnify. defend and hold Buyer harmless from and against all costs and expenses (including incidental and consequential damages and all claims and damages sought by Buyer’s customers, any of their customers, and any end-user) incurred by reason of such breach. Seller’s warranties shall survive any inspection by, delivery to, acceptance by, or payment by Buyer for any or all of the Work furnished hereunder, shall be in addition to any other warranties or service guarantees given by Seller to Buyer, shall be construed as conditions as well as warranties, shall not be determined exclusive, and shall be for the benefit of both the Buyer and its customers, and their successors and assigns. Seller specifically agrees that Buyer need not inform it of the breach of any warranties hereunder within any particular time and specifically waives any right that may accrue to Seller on account of Buyer’s failure to notify Seller of any breach of warranty within any period of time.
5. DELIVERY: Buyer’s production schedules are predicated upon the delivery of Goods to and/or performance of Services for Buyer at the delivery or performance time specified on the Purchase Order, and time therefore is of the essence in performing to the Purchase Order. If deliveries of Goods are not made or Services are not performed by the time specified, in addition to any other rights it may have at law, Buyer may refuse to accept such late deliveries or performance and may purchase similar Goods or Services elsewhere, and may hold Seller financially accountable for any loss occasioned thereby. If any deliveries are made earlier than the time specified herein, Buyer may return such Goods to Seller at Seller’s cost or may store such Goods at Seller’s cost until the specified time for delivery unless otherwise authorized by Buyer. If the Goods are to be delivered periodically or in installments, failure to deliver any one installment within the time specified shall authorize Buyer to refuse to accept the overdue and/or subsequent installments or to pay for any such installments and Buyer shall have the right to purchase the overdue installment and any and all subsequent installments on the open market without notice to Seller and may hold Seller liable for any loss occasioned thereby.
6. INDEMNIFICATION: Seller agrees to indemnify, defend and save and hold harmless Buyer, its subsidiaries and affiliates, and its and their respective past, present and future partners, members, shareholders, owners, directors, officers, agents and employees, and Buyer’s and its subsidiaries and affiliates’ customers, and all of their respective successors and assigns (collectively, “Buyer Indemnitees”) from, and reimburse Buyer and Buyer Indemnitees for, any and all claims, damages (direct, indirect, incidental, consequential, foreseeable, unforeseeable or otherwise), suits, actions, judgments, liabilities, losses, costs and expenses (including attorneys’ fees and litigation costs) of any nature (collectively, “Losses”) arising out of or resulting from Seller’s (and/or its subcontractors’ or suppliers’) performance or non-performance in connection with the Purchase Order, the negligence or willful misconduct of Seller (and/or its subcontractors’ or suppliers’) in connection with the Purchase Order, and/or Seller’s (and/or its subcontractors’ or suppliers’) breach of or failure to perform under or in accordance with the Purchase Order, including but not limited to (1) those arising from death of or injury to any person, and/or (2) those arising from loss of, damage to or loss of use of any property whatsoever, including but not limited to the Work or anything else delivered hereunder and any property of Buyer, any customer of Buyer, or any third party, AND WHETHER OR NOT ANY ACT OF OMISSION OF BUYER CONTRIBUTED THERETO. Seller further agrees to indemnify, defend and save and hold harmless Buyer and Buyer Indemnitees from, and reimburse Buyer and Buyer Indemnitees for, any and all Losses arising out of or resulting from the Work or any portion thereof alleged to constitute an infringement of any patent, trademark, copyright, intellectual property right, or other right of any third party.
7. PACKING AND CRATING: All Goods shall be packed by Seller in an appropriate manner for protection in shipment and storage. Unless otherwise specified, prices set forth in this Purchase Order include all charges for packing, crating and for transportation to the point of delivery set forth in the Purchase Order. The number of the Purchase Order shall appear on each invoice, bill of lading and packing list and every package and shipment. An itemized packing list, test report or certificate of compliance shall accompany each shipment made hereunder. Upon acceptance of the Purchase Order, Seller shall promptly notify Buyer as to the date of each shipment hereunder.
8. SPECIFIC PERFORMANCE: Seller agrees that in the event of a breach by it of any provision hereof, Buyer may, upon proper action instituted by it, be entitled to an injunction to prevent further breach hereof and to a decree for specific performance according to the terms of this Purchase Order. Seller and Buyer expressly agree that this Purchase Order is the proper subject for the remedies of injunctive relief and specific performance in the event of breach hereof.
9. INSURANCE: Seller agrees that it shall maintain at its expense liability and property damage insurance adequate to cover Seller’s obligations as set forth herein and shall maintain proper workmen’s compensation coverage on its employees engaged in the performance of the Work required hereunder. Seller agrees that all insurance policies shall include contractual coverage for this undertaking of Seller herein and be subject to the approval of the Buyer, including the policy forms and monetary limits, and that it shall furnish Buyer with certificates of such insurance coverage for it and the agreement of the appropriate insurance carrier to furnish Buyer with notice thirty (30) days beforehand of any material change or cancellation in any insurance coverage. Seller agrees that the failure of Buyer to request copies of insurance policies or certificates or to review and or approve any insurance of Seller shall not relieve Seller of its obligations to furnish insurance as required by the Purchase Order. Without limiting any of the foregoing, all material, tools, models, designs, patterns, drawings, and other personal property (including Goods) belonging to Buyer furnished by Buyer to Seller, or otherwise in Seller’s custody or possession, shall be at Seller’s risk from loss or damage from any and all hazards, except that Buyer, for Buyer’s sole benefit, may insure such material, tools, models, designs, patterns, drawings, and other personal property (including Goods) against loss or damage resulting from loss due to fire, lightning, cyclone, tornado, wind storm and hail, explosion, earthquake, aircraft or vehicle, smoke, sprinkler leakage, flood, stride, riot and civil commotion, vandalism and malicious mischief. Seller further agrees that the purchasing of any insurance hereunder shall not otherwise relieve Seller from any of its liability to Buyer hereunder. The purchase or furnishing of any insurance by Seller or Buyer on Goods in transit shall not alter the provision hereof that legal title to the Goods shall remain in Seller until delivered to Buyer as specified in the Purchase Order.
10. RISK OF LOSS: All risk of damage to, or loss of the Goods covered hereby from any cause whatsoever shall be and remain in Seller until the Goods are delivered to Buyer at Buyer’s delivery point specified in the Purchase Order.
11. TOOLS AND MATERIALS: Title to, and the right to immediate possession of all material, tools, models, designs, drawings, and other personal property (including Goods) belonging to Buyer, or furnished by Buyer to Seller for use in performance hereunder, or paid for by Buyer shall be and remain in Buyer at all times and Buyer does not guaranty or warranty the accuracy or performance of any such items furnished by it. Upon termination or completion of the Purchase Order, all material, tools, models, designs, drawings, and other personal property (including Goods) belonging to Buyer shall be returned free of charge to Buyer. Seller assumes responsibility for and liability for loss of and damage to any such property while in Seller’s possession, and until returned to Buyer.
12. CONFIDENTIALITY: Seller shall treat as confidential all of Buyer’s proprietary information, including, without limitation, any pricing, quantities, terms, information, data, trade secrets, know-how, drawings, manuals, specifications, standards, designs, plans, maps, manufacturing and production procedures and techniques, ordering frequency and history, models, sketches, samples, formulations, project specific calculations, instruments, software and computer records, and other business and technical documentation, information and materials belonging to Buyer, regardless of whether it is marked as confidential or not or the form in which it is communicated or maintained (whether in writing, electronically, digitally or otherwise) (collectively, “Confidential Information”) made available to Seller, directly or indirectly, and shall not disclose any such Confidential Information to third parties unless specifically designated to do so by Buyer in writing. Seller shall limit access to such Confidential Information to such of its employees as may reasonably be necessary to performance of Seller’s obligations under the Purchase Order. Seller shall be liable for any loss or damage resulting from any disclosure of Confidential Information, and shall not be released from its obligations of confidentiality, non-use and non-disclosure until and unless: (i) Confidential Information becomes non-confidential information without any breach of the Purchase Order or (ii) Buyer releases Seller from its confidentiality obligations hereunder by written notice. All technical documents developed by Buyer and to be provided to Seller as part of the obligations assumed hereunder, including any copyright therein, shall be the sole property of Buyer and shall always be treated as confidential.
13. TERMINATION FOR DEFAULT: The occurrence of any one or more of the following events shall constitute an “Event of Default”: (1) any failure of Seller to deliver any Goods or perform any Services, when, as, and in the manner required by the Purchase Order; (2) any breach of or failure by Seller to perform or comply with any other term, provision, or obligation under the Purchase Order; (3) the occurrence of, or the taking of any action by Seller for the purpose of effecting or facilitating, any of the following: (a) the suspension, dissolution or winding-up of Seller's business, (b) Seller's insolvency, or its inability to pay debts, or its nonpayment of debts, as they become due, (c) the institution of reorganization, bankruptcy, liquidation or other such proceedings by or against Seller or the appointment of a custodian, trustee, receiver or similar person for Seller's properties or business, or (d) an assignment by Seller for the benefit of its creditors.
Upon the occurrence of an Event of Default, Buyer may, by notice to Seller, and at any time or times, take any, some, or all of the following actions: (i) terminate the Purchase Order, in whole or in part; (ii) produce or provide itself, or procure from other sources, any Goods or Services to be produced or provided by Seller under the Purchase Order, and recover from Seller the difference between (1) the aggregate of all costs and expenses of any nature, including, without limitation, administrative and other indirect costs, paid or incurred by Buyer to produce, provide, or procure each such Good or Service and (2) the price for each such Good or Service hereunder; (iii) enter upon the premises of Seller and/or its subcontractors and suppliers, and take immediate possession of all of Buyer’s property; (iv) require Seller to turn over any or all completed Work, work in process, raw materials, inventory, components, and supplies, and Seller’s dies, tools, jigs, fixtures, equipment and patterns, used in the performance of the Purchase Order; and/or (v) exercise any other legal or equitable remedies Buyer may have. Buyer may take the foregoing actions without incurring any cost or liability to Seller, provided that Seller shall be entitled to compensation in the amount of the unpaid agreed price for any Goods completed, delivered and accepted by Buyer prior to termination, such compensation to be provided in the form of a setoff against any damages payable to Buyer as a result of any Event of Default or any other amounts owed to Buyer by Seller under the Purchase Order. Buyer shall determine the amount of compensation, if any, due Seller with respect to such termination and such determination shall be final. Upon termination, Buyer shall retain each and every claim, demand and liability it may have or acquire against the Seller as a result of any Event of Default. If Buyer exercises any termination rights under this paragraph and it is later determined that no Event of Default occurred or that termination was not otherwise proper hereunder, Buyer’s action shall be treated as a Termination for Convenience under the following paragraph N.
14. TERMINATION FOR CONVENIENCE: If either: (1) Seller has not commenced performing the Work under the Purchase Order, or (2) any Goods have not been delivered or any Services have not been performed by Seller within six (6) months after the time specified in the Purchase Order, then Buyer may, at its option, terminate the Purchase Order, in whole or in part, without penalty to Buyer, by giving written notice to the Seller. Any partial termination shall not alter or affect the terms of the Purchase Order with respect to, or result in a change to the price of, Work not terminated. After receipt of such notice, unless otherwise directed by Buyer, Seller shall: (1) immediately discontinue all terminated Work; (2) if so directed by Buyer, transfer title and deliver to Buyer all (a) completed Work, (b) work in process, and (c) materials produced or acquired in connection with such Work, which Work conforms to the requirements of the Purchase Order, does not exceed the Work authorized by Buyer, and cannot otherwise reasonably be used by Seller; and (3) take all action necessary to protect Work in Seller's or its subcontractors’ or suppliers’ possession in which Buyer has or may acquire an interest. Within ten (10) days of termination, Seller shall submit to Buyer its termination claim. Buyer’s liability for any claim shall be limited to: (i) the unpaid Purchase Order price for Goods or Services completed, delivered and accepted by Buyer prior to termination; (ii) if and to the extent so specified in the termination notice, the unpaid Purchase Order price for Goods or Services completed, delivered and accepted by Buyer after the termination; and (iii) if and to the extent so specified in the termination notice, the reasonable value or cost (whichever is less) of any work in process and materials produced or acquired in connection with such Work and required to be transferred to Buyer under subparagraph N(2)(b) and/or (c); provided, however, in no event shall Buyer’s liability exceed the price specified in the Purchase Order. In no event will Buyer be liable for lost profits or damages of any nature. The remedy set forth under this paragraph shall be Seller's sole and exclusive remedy (and the Buyer’s sole liability) in the event of a termination hereunder, and Seller’s failure to submit a timely and supported termination claim shall be deemed a waiver of all remedies.
15. ASSIGNMENT: Seller’s rights, claims, obligations or duties under the Purchase Order may not be assigned, transferred or delegated, by operation of law or otherwise, without the express written consent of Buyer, which consent may be withheld in the sole discretion of Buyer. The prohibition set forth in this paragraph includes, without limitation (and the following shall be deemed to be “assignments” for which the consent of Buyer is required): (1) a consolidation or merger of Seller; (2) any direct or indirect change in the beneficial ownership or voting rights of more than fifty percent (50%) (measured individually or cumulatively since the date of the Purchase Order) of the ownership or voting interests of Seller; (3) any assignment or transfer which would otherwise occur by operation of law, merger, consolidation, reorganization, transfer or other significant change in corporate or proprietary structure; and (4) the sale, assignment or transfer of all or substantially all of the assets of Seller.
16. WAIVER / REMEDIES: The waiver by one party of any breach of the Purchase Order or the failure of one party to enforce at any time, or for any period of time, any of the provisions hereof, shall be limited to the particular instance, shall not operate or be deemed to waive any future breaches of the Purchase Order, and shall not be construed to be a waiver of any provision, expect for the particular instance. No waiver or modification by Buyer of any provision of the Purchase Order shall be effective unless in writing and signed by a duly authorized officer or representative of Buyer. All rights and remedies herein given to Buyer are cumulative and are in addition to every remedy available now or hereafter existing at law, in equity, or by statue.
17. SEVERABILITY: If any provision of the Purchase Order shall contravene or be invalid under the laws of any particular state, country, or jurisdiction which may be applicable, such contravention shall not invalidate the entire Purchase Order, but it shall be construed as if not containing the particular provision or provisions held to be invalid in that particular state, country or jurisdiction and the rights or obligations of the parties hereto shall be construed and enforced accordingly.
18. CHOICE OF LAW: Regardless of the place of its execution or performance, the Purchase Order is to be governed by and construed according to the law of the State of Texas, without regard to the conflict of laws principles specified therein.
19. DISPUTES: THE PARTIES AGREE THAT IN THE EVENT OF A DISPUTE OR ANY ALLEGATION OF BREACH CONCERNING THE PARTIES’ PERFORMANCE UNDER THE TERMS OF THE PURCHASE ORDER, THAT THE PARTIES SHALL, FOR A PERIOD NOT TO EXCEED THIRTY (30) DAYS FOLLOWING NOTICE BY ONE PARTY TO THE OTHER PARTY THAT A DISPUTE EXISTS, ENDEAVOR TO RESOLVE SUCH DISPUTE THROUGH GOOD FAITH NEGOTIATIONS. IN THE EVENT THAT THE PARTIES FAIL TO RESOLVE THEIR DISPUTE IN THE FOREGOING MANNER, THE ALLEGED BREACH OR DISPUTE SHALL BE SUBMITTED TO NON-BINDING MEDIATION AS A CONDITION PRECEDENT TO THE INSTITUTION OF LEGAL PROCEEDINGS BY EITHER PARTY. THE PARTIES SHALL SHARE THE MEDIATOR’S FEE AND ANY FILING FEES EQUALLY. THE MEDIATION SHALL BE HELD IN HARRIS COUNTY, TEXAS, UNLESS ANOTHER LOCATION IS MUTUALLY AGREED UPON BY THE PARTIES. ANY SETTLEMENT AGREEMENTS REACHED THROUGH MEDIATION SHALL BE ENFORCEABLE AS SETTLEMENT AGREEMENTS IN ANY COURT HAVING JURISDICTION THEREOF. IF THE BREACH OR DISPUTE IS NOT RESOLVED BY MEDIATION, THE PARTIES WILL SUBMIT THE BREACH OR DISPUTE TO THE DISTRICT COURTS IN HARRIS COUNTY, TEXAS OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS (HOUSTON DIVISION).
20. FORCE MAJEURE: Buyer shall not be liable for performance hereunder due to any contingency beyond Buyer’s control, including, without limitation, acts of God, fires, strikes, lockouts, differences with or among workmen, accidents, wars, civil commotion, riot or insurrection, inability to secure transportation equipment, fuels or other material, government interference or regulation, or delays in transportation. Should any of the foregoing conditions continue for a period of 30 days after the occurrence, Buyer may, at its option, cancel this Purchase Order without incurring any liability therefore to the Seller or in any manner prejudicing the Buyer’s right hereunder.
21. SURVIVAL: It is agreed that the obligations of Seller, and Buyer’s rights, under these provisions hereof which are intended to survive the termination, expiration, cancellation or completion of the Purchase Order, and any other provisions of the Purchase Order necessary for Buyer to fully enforce its rights hereunder, shall survive the termination, expiration, cancellation, or completion of the Purchase Order.
22. ENTIRE AGREEMENT / AMENDMENTS / CONFLICTS: This Purchase Order, any separate written contract or agreement between Buyer and Seller referenced in the Purchase Order (“Seller Agreement”), all special terms and conditions or supplemental terms incorporated into the Purchase Order (“Supplemental Terms”), and these Terms and Conditions, together constitute the entire agreement between Buyer and Seller regarding the subject matter hereof and supersede all prior agreements or understandings, oral or written, in connection herewith, may not be modified or amended except by written amendments signed by duly authorized representatives of Buyer and Seller, and shall be read, interpreted, and applied as a whole in a manner designed to reflect the overall intent of Buyer and Seller that Seller provide or perform Work in full accordance with the requirements of Buyer and the Purchase Order. In the event of any unresolved direct inconsistencies between or among the documentation, (1) the provision imposing the strictest requirement on Seller, as determined by Buyer, shall take precedence, or, (2) in the absence of the application of the foregoing provision, the order of precedence shall be: the Seller Agreement will govern first, the Purchase Order second, any Supplemental Terms third, and these Terms and Conditions last.