Terms of Sale:
Valiant Artificial Lift Solutions LLC
USA STANDARD TERMS AND CONDITIONS OF SALE
INTERPRETATION
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.
APPLICABILITY
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 the order, specification or other documents).
No terms or conditions endorsed on, delivered with, or contained in the Buyer’s purchase order, confirmation of the 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.
PRICES
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 the date of the 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. The 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 the 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 the 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, the 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, the title shall pass to the 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 oft he 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.
The 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 the 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 the actual date of delivery, Seller may (at its sole discretion) place Products in storage at the sole cost, expense, and risk of the Buyer.
RENTAL EQUIPMENT:
The supply of rental equipment (“Equipment”) by the Seller is subject to the availability of Equipment at the placement of order. The rental period commences on the date that Equipment is available for collection EXW (Incoterms2010) 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.
The 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: The 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. The buyer agrees not to adjust the operational parameters (ex. overload, underload, or restart settings, etc.) without the agreement of the 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 for 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 downhole 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 downhole systems in the event it is deemed necessary upon the pulling of the well for well work or low production.
Power Issues: The 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 other wise 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. The title to the Equipment remains with the Seller. Buyer will not obscure, alter or remove any label or similar visual indication of Seller’s ownership from the Equipment.
FORCE MAJEURE
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.
WARRANTY
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 ORGUARANTEES, WHETHER ORAL, WRITTEN, EXPRESSED, IMPLIED, OR STATUTORY, AND SELLERMAKES NO WARRANTY AS TO FITNESS FOR PURPOSE OR MERCHANTABILITY. SELLER’SWARRANTY OBLIGATIONS AND BUYER’S REMEDIES ARE SOLELY AND EXCLUSIVELY AS STATEDHEREIN.
THE WARRANTY PERIOD SHALL NOT BE EXTENDED FOR REPAIRED ORREPLACED PARTS, PRODUCTS, OR EQUIPMENT, OR REPERFORMED SERVICES. SUCH PARTS,PRODUCTS, EQUIPMENT, OR SERVICES SHALL REMAIN UNDER WARRANTY ONLY FOR THEUNEXPIRED PORTION OF THE ORIGINAL WARRANTY PERIOD. SELLER’S SOLE LIABILITYSHALL BE AT ITS OPTION TO REPAIR OR REPLACE PARTS, PRODUCTS, OR EQUIPMENT ORREPERFORM SERVICES UNDER THIS CONDITION. THE SELLER MAY IN ITS SOLE DISCRETIONCREDIT THE BUYER’S ACCOUNT FOR A PORTION OF SUCH PARTS, PRODUCTS, EQUIPMENT,AND/OR SERVICES DETERMINED BY THE 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” SHALLMEAN (IN EACH CASE WHETHER OR NOT FORESEEABLE AT THE DATE OF THE CONTRACT): (a)ANY AND ALL CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE AND/ORSPECIAL LOSS AND/OR DAMAGE; AND (b) LOSS AND/OR DEFERRAL OF PRODUCTION, LOSS OFPRODUCT, LOSS OF GOODWILL, LOSS OF USE, LOSS OF REVENUE, PROFIT OR ANTICIPATEDPROFIT, AND COST OF CAPITAL, IN EACH CASE WHETHER DIRECT OR INDIRECT TO THEEXTENT 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 EXPENSESINCURRED IN CONNECTION WITH LABOR OVERHEAD, TRANSPORTATION OR SUBSTITUTEFACILITIES OR SUPPLY SOURCES, LABOR PERFORMED IN CONNECTION WITH THE REMOVALAND REPLACEMENT OF PRODUCTS WITHIN THE WELL OR ANY OTHER LOSS OR DAMAGEINCURRED AS A RESULT OF OR OTHERWISE IN CONNECTION WITH INTERRUPTION OF SERVICEIN EACH CASE TO THE EXTENT THAT SUCH CLAIM IS NOT INCLUDED IN CLAUSE (a) ORCLAUSE (b).
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY ELSEWHERE, INNO CASE WILL THE SELLER BE LIABLE FOR CONSEQUENTIAL LOSS, AND THE BUYER SHALLBE LIABLE FOR AND SHALL SAVE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE SELLERGROUP FROM AND AGAINST ANY AND ALL CONSEQUENTIAL LOSS EVEN IF CAUSED BY THESELLER’S SOLE, JOINT, COMPARATIVE, CONTRIBUTORY OR CONCURRENT NEGLIGENCE,FAULT, STRICT LIABILITY OR PRODUCT LIABILITY, AND REGARDLESS OF THE FORM OFACTION, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY,INDEMNITY, STATUTE, STRICT LIABILITY OR OTHERWISE.
THE TOTAL LIABILITY OF THE SELLER ON ANY CLAIM WHETHER INCONTRACT, TORT (INCLUDING NEGLIGENCE WHETHER SOLE OR CONCURRENT) OR OTHERWISEARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE MANUFACTURE, SALE,DELIVERY, RESALE, REPAIR, REPLACEMENT, OR USE OF ANY PRODUCT, OR THE FURNISHINGOF ANY SERVICE, OR THE PERFORMANCE OR NONPERFORMANCE OF THE CONTRACT SHALL NOTEXCEED THE PRICE RECEIVED BY THE SELLER AND ALLOCABLE TO THE PRODUCT OR PARTTHEREOF, OR THE COST OF FURNISHING OF ANY SERVICE WHICH GIVES RISE TO THECLAIM.
BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITYLIMITATIONS ARE ESSENTIAL ELEMENTS OF THE CONTRACT AND THAT IN THE ABSENCE OFSUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THE CONTRACT WOULD BESUBSTANTIALLY DIFFERENT.
INDEMNITIES
All exclusions and indemnities given under this Section 10 (save for thoseunder Sections 10.1(c) and 10.2(c)) and Section 8, respectively, shall applyirrespective of cause and notwithstanding the negligence or breach of duty(whether statutory or otherwise) of the indemnified party or any other entityor party and shall apply irrespective of any claim in tort, under contract orotherwise at law. For the purposes of Sections 10.1(c) and 10.2(c), “thirdparty” shall mean any party which is not a member of either the Buyer Group orthe Seller Group.
The Seller shall be responsible for and shall save,indemnify, defend and hold harmless the Buyer Group from and against allclaims, losses, damages, costs (including legal costs) expenses, andliabilities in respect of:
subject to Section 10.2(d), loss of or damage to property (other than theProducts after delivery pursuant to Section 5 or Section 6, as applicable) ofthe Seller Group whether owned, hired, leased, or otherwise provided by theSeller Group arising from or relating to the performance of the Contract;
personal injury including death or disease to any person employed by the SellerGroup arising from or relating to the performance of the Contract; and
subject to Section 10.3, personal injury including death or disease or loss ofor damage to the property of any third party to the extent that any suchinjury, loss, or damage is caused by the negligence or breach of duty (whetherstatutory 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 (includingthe 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 theBuyer Group arising from relating to or in connection with the performance ornon-performance of the Contract;
(c) subject to any other express provisions of the Contract, personal injuryincluding death or disease or loss of or damage to the property of any thirdparty to the extent that any such injury, loss, or damage is caused by thenegligence or breach of duty (whether statutory or otherwise) of the BuyerGroup; and
(d) at Seller’s option, either the repair or replacement orreimbursement of the full cost of Seller’s equipment, tools, and/or instrumentswhich are lost or damaged down-hole in the Buyer’s well during the provision ofServices or are lost or damaged due to abrasion or corrosion occasioned by welleffluents unless such loss or damage is due to the sole negligence of theSeller.
Notwithstanding Section 10.1, Buyer shall be liable for, andshall defend, indemnify and hold Seller Group harmless from and against, anyand all claims which arise out of the performance or non-performance of theContract in relation to the following, and whether or not resulting from, orcontributed to by, the negligence of Seller Group: (i) loss of or damage to anywell or hole or any third-party oil and gas production facilities; (ii)reservoir seepage or pollution originating underground or from the property ofthe 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 includingany pipeline or other subsurface facility.
Notwithstanding anything to the contrary in the Contract,Buyer shall be responsible for and shall save, indemnify, defend and holdharmless Seller Group from and against all claims, losses, damages, costs(including legal costs) expenses, and liabilities in respect of any acts oromissions of the employees or agents of the Seller Group in connection with theperformance of the Services (or any part of the Services), where, in accordancewith 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 theServices.
NON-DELIVERY
The quantity of any consignment of Products as recorded by the Seller ondispatch from the Seller’s place of business or other designated location shallbe conclusive evidence of the quantity received by Buyer on delivery unlessBuyer can provide evidence proving the contrary. Seller shall not be liable fornon-delivery of Products (even if caused by Seller’s negligence) unless Buyergives 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 ofevents have been received. Any liability of the Seller for non-delivery of theProducts shall be limited to, at Seller’s sole discretion, either replacing theProducts or issuing a credit note against any invoice issued for the Products.
INFRINGEMENT
If Buyer receives a claim or otherwise becomes aware that any Product or partthereof manufactured by Seller infringes or allegedly infringes a patent orother intellectual property right, Buyer shall notify Seller immediately inwriting and give Seller information, assistance, and exclusive authority toevaluate, defend and settle such claim or potential infringement. Seller shallthen at its own expense and option (a) settle such claim, or (b) procure forBuyer the right to use such Product, or (c) replace or modify it to avoidinfringement, or (d) remove it and refund the purchase price (includingtransportation and installation costs) less a reasonable amount fordepreciation, or (e) defend against such claim.
CANCELLATION AND CHANGES
The Buyer may not cancel or reschedule the delivery date of any Product and/orServices to be provided under the Contract without the prior written consent ofthe Seller. In the event that the Seller provides such consent, any suchcancellation or rescheduling of Product and/or Services by Buyer will result ina charge to Buyer to be determined by the Seller. All specially designed ormodified Products canceled after commencement of manufacture will be subject toa cancellation charge which will include all costs and a reasonable margin fortime employed, as determined by Seller. Cancellation charges for accessoriesand components sourced from third parties will be charged at full price. Sellershall, at its sole discretion, adjust the price or delivery dates or make suchother amendments as may be required as a result of any change order agreed tobe issued by the Buyer and Seller. No amendment to a purchase order or OrderAcknowledgment or change order shall be valid unless agreed in writing by theSeller (at its sole discretion).
WAIVER
Any waiver by Seller of any breach or default by Buyer of any of the Buyer’sobligations under the Contract, or any failure by Seller to enforce any rightsarising under the Contract shall not be construed as a waiver of any other orsubsequent breach or default by Buyer or of Seller’s right to enforce itsrights arising hereunder in any circumstances. In the event of any default byBuyer, Seller may decline to make further shipments. If Seller elects tocontinue to make deliveries, Seller’s action shall not constitute a waiver ofany such default or affect Seller’s remedies for any such default.
ENTIRE AGREEMENT
The Order Acknowledgment, any Special Conditions, and these Standard Terms andConditions constitute the entire Contract between the Buyer and the Sellerrelating to the sale of the Products and/or Services and supersede all previouscommunications, representations, or agreements, either oral or written, withrespect to the subject matter hereof. No prior representations or statementsrelating to the sale of the Products and/or Services made by any Sellerrepresentative and not stated in the Contract shall be binding on Seller.
EXPORT CONTROL
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 Sellerto any destination or country to which the export, re-export, or release of thetechnology or Product is prohibited by the Export Administration Regulations ofthe U.S. Department of Commerce (“EAR”), or prohibited by US or applicablenon-US laws.
The buyer will be responsible for obtaining any necessaryexport license or other documentation prior to the exportation orre-exportation of any Product acquired from the Seller under the Contract.Further, Buyer shall give notice of the need to comply with such laws andregulations to any person, firm, or entity which it has reason to believe isobtaining any such Product from Buyer with the intention of exportation. Eachparty shall secure, at its own expense, such licenses and export and importdocuments as are necessary for each respective party to fulfill its obligationsunder the Contract. If approvals cannot be obtained, Seller may terminate,cancel, or otherwise be excused from performing any obligations it may haveunder the Contract. Any export classification made by Seller shall be forSeller’s internal use only and shall not be construed as a representation orwarranty regarding the proper export classification for such Product or whetheran export license or other documentation is required for the exportation ofsuch Product. This Section 16 shall survive termination of the Contract.
BUSINESS ETHICS
Neither Seller nor Buyer shall make any payment or take any action that couldbe construed to be the payment of money or other thing of value to anygovernment official, political party, or political party candidate for thepurpose of influencing any act or inducing any government official to use hisor its influence to assist in obtaining or retaining business in any country ina manner which is illegal or which would subject the Seller to civil orcriminal penalties, or which is inconsistent with Seller’s Business EthicsPolicy.
ASSIGNMENT
The Seller may assign the Contract or any part of it to any person, firm, orcompany. The Buyer shall not be entitled to assign the Contract or any part ofit without the prior written consent of the Seller.
ARBITRATION
The parties agree that any and all disputes or controversies that may arisebetween the parties arising out of or related to the Contract shall bedetermined by binding arbitration. Any such arbitration shall be conducted inaccordance with the rules of the American Arbitration Association then ineffect, with each party nominating one arbitrator and the two arbitratorsnominating a third, and any arbitration proceedings shall be held in OklahomaCity, Oklahoma. Judgment upon arbitration awards may be entered in any court,state or federal, having jurisdiction.
GOVERNING LAW
The Contract shall be governed and construed in accordance with the laws of theState of Oklahoma, without giving effect to any conflicts of laws principles.
MISCELLANEOUS
All samples, drawings, descriptive matter, specifications, and advertisingissued by the Seller and any descriptions or illustrations contained in theSeller’s catalogues or brochures are issued or published for the sole purposeof giving an approximate idea of the Products and/or Services described inthem. They shall not form part of the Contract.
The Buyer shall at its own expense secure any permits or anyother authorizations (including but not limited to work permits and visas foremployees of the Seller) which may be required to permit the Seller to performthe Services. The Buyer agrees to indemnify the Seller against any costs,claims, actions, demands, or expenses incurred or suffered in connection withthe Buyer’s failure to obtain any permits or authorizations required to performthe Services.
Buyer agrees to allow Seller and its authorized agents toreference Buyer’s company name in internal and external publications,advertisements, case studies, trade journals, and any other public-facingmaterials. Seller may seek to use Buyer’s quotes in written publications. Inthese instances, the person providing the quote would be the approver of saidquote.
If any provision of the Contract is found by any court,tribunal, or administrative body of competent jurisdiction to be wholly orpartly illegal, invalid, void, voidable, or unenforceable it shall to theextent of such illegality, invalidity, voidness, voidability, orunenforceability be deemed severable and the remaining provisions of theContract 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.
Terms of Purchase:
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 withthe terms hereof will not become a part of any contract, unless Buyerspecifically and expressly agrees in writing that such other terms areaccepted. In no event, shall Buyer be deemed to have accepted such other termsby virtue of any writing contained in Seller’s Order acknowledgement, invoice,or other pre-printed form. By accepting Order or any part hereof, Seller agreesto and accepts all the provisions of Order Including drawing and specificationdocuments by reference therein and all the provisions of the Valiant ALS LLCSupplier Quality.
II. Payment Terms
Unless otherwise stated on the face of the Order or restricted by applicablelaw, payment terms are net due 60 calendar days from the end of the month whenthe Payment Start Date occurs, where the “Payment Start Date” is the latest ofthe required date identified on the Order, the received date of the goodsand/or services in Buyer’s receiving system, or the date of receipt of a validinvoice by Buyer (provided that, where applicable, invoices shall be issuedaccording 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 toBuyer an acknowledgment of Order. Seller shall be bound by Order and Its termsand conditions when it executes and returns an acknowledgement when itotherwise indicates its acceptance of the Order, or when it delivers to Buyerany of the goods ordered or renders to Buyer any of the services ordered. ThisOrder expressly limits acceptance by Seller to the terms and conditions hereinstated and any additional or different terms proposed by the Seller arerejected unless expressly consented to in writing by the Buyer. No contractshall exist except as herein above provided. Waiver or the failure of Buyer toInsist on any one or more Instances upon the performance of any terms,covenants, or conditions of this contract or to exercise any right hereundershall not be construed as a waiver or relinquishment of the future performanceat any such terms, covenants or conditions or the future exercise of such right.but the obligation of Seller with respect to such future performance shallcontinue in full force and effect.
IV. Inspection of Goods
All work performed, and all deliverable items are subject to inspection andacceptance within a reasonable time. but not less than 30 days, after delivery,notwithstanding any inspection prior to delivery or any prior payment for suchwork or items. When required, Seller will provide reasonable access to Seller’sfacilities for purposes or source inspection or audit by Buyer, buyer’scustomer, or third-party inspection personnel contracted by Buyer or Buyer’scustomer.
V. Rejection of Goods
Buyer reserves the right to return, at Seiler’s expense, any rejected materialsor services at Buyer’s cost. Buyer, at its option, may reject all or anyportion 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 PurchaseOrder. Buyer may elect to reject the entire goods and services tendered even ifonly a portion thereof is nonconforming. If Buyer elects to reject or acceptnon-conforming goods or services. Buyer, In addition to its other remediesprovided by law, shall be entitled to charge a reasonable amount to compensateBuyer for non-value added costs such as documentation, rework, lossproductivity, or other such costs attributed to the nonconformity, Anyacceptance by Buyer, even if non-conditional, shall not be deemed a waver orsettlement of any defect in such goods and services, and acceptance may berevoked in the event of latent defects, fraud, such gross mistakes as amount offraud and breach or the Seller’s warranty obligations.
VI. Delivery
Time is of the essence of this Order. Unless stated otherwise on the face ofthe Order, delivery shall be made as follows: (i) with respect to domesticOrders, delivery terms are F.O.B. seller dock; Seller Is only authorized to useBuyer’s approved contract carriers. Seller will be liable for excess freightcharges for shipping Orders using unauthorized carriers, (II) with respect toInternational Orders, delivery terms are EXW Seller dock: Seller Is onlyauthorized to use Buyer’s approved contract carriers. Seller will be liable forexcess freight charges for shipping Orders using unauthorized carriers. It isunderstood by all parties here to that with respect to the delivery schedule asspecified on Purchase Order. ‘time Is of the essence. Therefore, failure todeliver procured goods or services on time may result in termination of Orderat the option of the Buyer. Delivery must be made within the time stated onOrder, failing which, Buyer reserves the right to procure elsewhere, and Buyer mayreject 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 latefor domestic or NAFTA Seller and ten (10) business days early, zero (0) daysfor an overseas Seller. Where late goods are accepted by the Buyer with orwithout objections, such acceptance shall not constitute waive of therequirements of time and performance when performance is divisible. If no dateIs specified, Buyer may exercise said rights if delivery is not made within areasonable time.
VII. Risk of Loss
Until accepted by Buyer as provided above, SELLER shall bear all risks of lossand damage. unless such loss or damage results solely from the activenegligence of Buyer.
VIII. Warranty
Seller warrants, without limitation of time, that goods and services provided(a) are of merchantable quality; (b) are fit for the particular needs andpurposes of Buyer as may be communicated to Seller; (c) comply with the highestwarranties, representations, and opinions expressed by Seller orally or in anywritten advertisement correspondence or other document provided to or inpossession of Buyer; (d) comply with all applicable laws. codes, andregulations 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. orother rights of third parties; and (g) that all goods and materials deliveredare free and clear of all liens, claims, and encumbrances of any kindwhatsoever. If any or the foregoing warranties Is breached, Seller agrees tocorrect all defects and nonconformities, to be liable for all direct, Indirect,consequential, and other damages suffered by Buyer and any other persons, andIs to defend and indemnify, Buyer from any claim (including All costs,expenses, and attorney’s fees in defending any such claim) asserted by anyperson resulting in whole or in part from such breach.
IX. Indemnity
Seller agrees to forever indemnify, defend and save harmless Buyer from andagainst 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’sfees, whether direct, Indirect, or consequential , on account or any Injury,death or damage to any person or persons or property including, withoutlimitation oil agents and employees or Seller and Buyer or both, or on accountof 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 orIn any way connected therewith or in any way related thereto, and regardless ofwhether 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 personor (c) any strict liability or Buyer or any person. There are excluded from theabove Indemnity and waiver provisions any such claim, suits or demands of liability,loss or damage resulting solely from Buyer’s gross recklessness, activenegligence, or willful intent to injure.
As used in this Indemnity and waiver provision, and for purposes or Seller’sInsurance, Buyer shall be deemed to include Valiant ALS LLC, its directors,officers. and employees. agents, affiliated organizations, and their Insurancecarriers, if any. If Seller’s work under the order Involves operations by theSeller outside of the Seller’s promises, seller shall take all necessaryprecautions to prevent the occurrence of damage to persons or property duringthe progress of such work and shall indemnify Buyer against all loss which mayresult in any way from any act of omission or commission on the part of theSeller, its agents, employees or subcontractors, except to the extent that anysuch 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 ofBuyer, Seller shall ensure that Its workers comply with all applicable OSHAregulations and with all aspects of Buyer’s safety program. The Seller willfurther indemnify and save harmless Buyer, its officers, employees, agents andrepresentatives from and against any and all demands of every nature and kindarising out of a breach by Seller of its obligation herein or otherwise arisingout of a breach by Seller of Its obligations herein or otherwise arising out ofinjury to or death of any subcontractor, employee, agent representative orinvitee of the Seller or any subcontractor or the Seller while In on or nearthe premises or Buyer, however such Injury or death may be caused, whethercaused or alleged to be caused by the negligence of Buyer or its agents, theconditions of the premises or otherwise. The Buyer, after such demand, maywithhold from any amounts at the time payable to the Seller under PurchaseOrder each sum or sums and for such period or periods that the Buyer may deemnecessary to protect the buyer against possible loss or expense, including attorney’sfees, from or in connection with any such demand. If sellers furnished in anymaterials or products which become a part of any material of Buyer, then Sellerwill further Indemnify and save harmless Buyer, its employees, agents,representatives from and against any and all demands of every nature and kindarising out of the Injury to and/or death or property damage to any thirdperson. if said Injury, death and/or property damage Is In any way caused fromany act of omission on the part of the Seller, its agents, employees. orsubcontractors, except to the extent that any loss or damage is due solely anddirectly from the active negligence of Buyer. This indemnification Includes,but is in no way limited to, any defective materials, products and service ineither manufacture or design.
X. Infringement
Seller agrees to protect and save harmless Buyer against all claims (Includingfrom Attorney’s fees and expenses) for patent, trademark, copyright orfranchising infringement arising out of the purchase, installation or use ofthe materials ordered. and to assume all expenses and damages arising from suchclaims.
XI. Complete Agreement
Purchase Order, Including Any continuation attached, shall constitute buyer’soffer to Seller, and become a binding contract on the terms and conditions setforth herein, upon Seller’s written acceptance thereof or commencement ofperformance. No revision, modification, termination, or waiver of theprovisions of Purchase Order or any or terms and conditions thereof shall bevalid unless inwriting and signed by an authorized representative of Buyer andno condition stated by Seller In accepting or acknowledging Purchase Ordershall be binding upon Buyer if in conflict with and/or inconsistent with and/orin addition to the terms and conditions unless expressly accepted in writing byBuyer. Seller’s quotation is incorporated only insofar as It is specificallystated. No other terms or conditions are binding on Buyer UNLESS ACCEPTED by itIN WRITING. Purchase Order and this contract contains the entire agreement ofthe parties. No modification or waiver shall be deemed affected by Seller’sacknowledgement or confirmation containing other or different terms.
XII. Quantity
The quantity of material ordered or released must not be exceeded and Buyershall not be liable for or may reject any material delivered in excess of thatso 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.
XIII. Price
Purchase Order must not be filled at higher prices than quoted or chargedwithout a thirty (30) day written notice and subject lo Buyer’s right to rejectsuch price increase and to terminate Order without recourse by Seller. If noprice is stated on Order, Seller agrees to Invoice at the lowest prevailingmarket price. In the event Seller, during the performance of its obligationsunder Order, reduces its price of materials supplied or services furnished ofthe same quantity, grade and quality. Seller agrees to give Buyer the benefitor such reduction in price.
XIV. Other charges
Unless stated on Purchase Order. no charge will be allowed for prototype. firstarticle, minimum lot, surcharges, purchase order revision, cancellation,expedite. Incentive, performance, patterns, tools, jigs, fixtures, gages,packing, crating, drayage or storage.
XV. Termination
If Seller ceases to conduct Its operation and normal course of business,Including ability to meet its obligations as they mature, or If any proceedingsunder bankruptcy or insolvency laws are brought by or used against Seller, orreceiver for Seller is applied for or any assessment for the benefit orcreditors is made by the Seller, Buyer may terminate order without liabilityexcept for deliveries previously made or for goods covered by Order thencompleted and subsequently delivered in accordance with the terms thereof. Ifthe goods covered by order are standard stock merchandise, Buyer may terminateall or any part of the unshipped portion order at any time by written notice toSeller, and in such event Buyer shall have no further obligation forcancellation charges otherwise except to make payments subject to otherapplicable terms hereof, for the goods actually shipped and In transit prior tosuch termination.
XVI. Title
Title to the materials and supplies purchased hereunder shall pass directlyfrom Seller to Buyer at the delivery point as specified on the face of PurchaseOrder, subject to Buyer’s right of inspection.
XVII. Shipping instructions
Shipment must be made as specified on the face of Purchase Order unlesssubsequently modified in writing by Buyer.
XVIII. Discount Terms
Discount terms are shown on face of Purchase Order. If no terms are specifiedand unless Invoice specifically stated deferent terms, invoices are subject tocash discounts of two percent (2%) net ten (10) days after actual cash receiptof 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 bestcommercial pack at no additional charge to the Buyer. Such procedure shallrequire the inclusion of a packing list In each box shipped which indicates thecontents thereof.
XX. Compliance with Applicable laws
Seller agrees that in the performance of this contract It shall comply with allthe applicable laws, statutes, rules and regulations or orders of the UnitedStates government or any state or political subdivision thereof withoutlimiting the generality of the foregoing.
XXI. Documentation Requirements
Seller agrees to furnish all documentation as Buyer may require Including, butnot necessarily limited to, Material Test Reports (MTR’s) Certificates ofConformance, Compliance, origin, etc. Seller agrees that Buyer may withholdpayment of Invoice until all documentation requirements are satisfied and thattimeframe for discount terms will not commence until all acceptabledocumentation is received.
XXII. Right of Set-Off
Buyer, at all times, shall be entitled to set-off against any amounts Buyerowes to Seller on account of goods or services provided by Seller under thisorder any other amounts which Buyer reasonably believes to be owed to Buyer bySeller under the terms and conditions of this order between Buyer and Seller.