1. Sole Agreement: This purchase order and any Master Purchase Agreement, Master Service Agreement, and Nondisclosure or Confidentiality Agreement executed between the parties constitutes the entire agreement of the parties with respect to the purchase of the services and goods indicated on the face of this order (“Products”). The terms and conditions in any applicable Master Purchase Agreement, Master Service Agreement, or Nondisclosure or Confidentiality Agreement will control over the terms and conditions in this order to the extent there is a conflict. Buyer objects to, rejects, and shall not be bound by any past or future terms and conditions not set forth herein, including any additional or inconsistent terms shown on Seller’s sales confirmation, shipping documents, invoices, documents, or other communication and any additions or inconsistencies therein with the provisions hereof shall be null and void. If Buyer’s order is found to be an offer, the offer is expressly conditional on Seller’s acceptance of these terms and conditions without modification or addition. If Buyer’s order is found to be an acceptance of an offer, Buyer’s acceptance of the offer is expressly made conditional upon Seller’s assent solely to these terms and conditions. Shipment of any part of the Products or other commencement of performance by Seller shall be deemed to constitute such assent by Seller.
2. Changes: Seller may not substitute any products or services for Products ordered and may not make any changes to the specifications, country of origin, manufacturing location, quality assurance processes, components, or production processes for any Product without the prior written approval of Buyer. Buyer may, at any time and at its discretion, modify the quantities, specifications, Products, and delivery dates stated in the order, or suspend the order, by submitting a written change order to Seller. Buyer may return any unused quantities of Product to Seller provided that such quantities have not been altered by Buyer. No claims or charges will be allowed by Buyer as a result of a change order or for additional work or material, or for drayage or packing, unless Seller obtains Buyer’s written approval for the charges prior to incurring them.
3. Price: The price for Products shall be the price stated in this order. Prices are inclusive of all handling, taxes, duties, fees, or charge of any kind, except that prices do not include any applicable state or local sales or use tax. Any such taxes which Seller is obligated to collect shall be added to the invoice as a separate charge to be paid by the Buyer. Buyer reserves a security interest in all goods paid for but not delivered and Seller will execute such documents of acknowledgment as are requested by Buyer.
4. Title; Delivery: Seller shall deliver Products on the date stated on the face of this order. Unless otherwise designated on the face of this order, title and risk of loss to all Products purchased hereunder shall pass to Buyer upon acceptance F.O.B. receipt point(s) designated in this order. Use of a portion of the Products for the purpose of testing shall not constitute an acceptance of the goods. Seller shall promptly provide the following information to Buyer: 1) all information requested by Buyer to timely file an Importer Security Filing (“ISF”) with the U.S. Customs and Border Protection, including the Products’ ECCN classification number and the Products’ Harmonized Tariff Code; 2) all information requested by Buyer to comply with the laws of the country of import; 3) all information required by Buyer to export or re-export the Products; 4) the country of origin for all Products; 5) Seller’s declaration of preferential origin or preferential certificates; and 6) all other information reasonably requested by Buyer. Seller will promptly provide all commercial invoices and packing lists in the form and including all information reasonably requested by Buyer.
5. Damages: Time is of the essence. If Seller delivers Products that do not strictly comply with this order or any applicable purchase order, without limiting Buyer’ other remedies, (a) Seller shall pay Buyer, at Buyer’ option, either (i) the actual damages incurred by Buyer, or (ii) 4% of the order price for each day delivery is not made in accordance with the this order or the applicable purchase order, up to 20% of the total price of the order; and (b) Buyer may reject the Products.
6. Force Majeure: Neither party shall be liable for delays caused by acts of God, riots, war, rebellion, sabotage, acts of terrorism, acts of public enemies, and acts of governmental authorities, provided notice thereof is given to the other party as soon as practicable. Buyer reserves the right to cancel this order without liability should such delays by Seller, in Buyer’s sole judgment, adversely affect Buyer.
7. Warranty: Seller warrants to Buyer Group (defined below) that, at the time of delivery and for five years after delivery, Products shall meet the following requirements: a) be new and made or manufactured from new materials; b) be free from liens, security interests, or other encumbrances caused by or on behalf of Seller; c) be of merchantable quality and fit for the purpose for which they are purchased; d) strictly comply with Buyer’s specifications for the Products, all specifications and representations included in drawings, designs, prototypes, samples, and Seller’s catalogs, brochures, and other marketing materials, and all specifications set forth by the American Petroleum Institute (API) and any other industry standard-governing entities, e) be free from defects in material, workmanship, and design; f) not infringe any third party’s intellectual or industrial property rights; g) not include open source code; h) not contain or introduce any viruses, worm, trap door, back door, timer, clock, counter, or other limiting routine, instruction, or design that would erase data or programming or otherwise cause any of Buyer Group’s systems to become inoperable or incapable of being used in the full manner for which it was designed or created; i) not require export licenses for Buyer Group to export or re-export the Products or any technology or data provided with the Products; and j) meet or exceed the highest industry standards applicable for the Products. Seller warrants to Buyer Group that all information Seller provides Buyer pursuant to this order will be complete and accurate. If Products fail to comply with the warranties in this Section 7, Seller shall, at Buyer’s option, repair, replace, re-perform, or refund the purchase price of, the affected Products, or otherwise rectify the failure as requested by Buyer, and Seller shall be liable for all associated costs, including but not limited to all transportation, advertising, and labor expenses. Buyer may purchase substitute goods and services in lieu of requiring Seller to repair or replace the affected Products, and Seller shall be liable for any additional costs incurred by Buyer in doing so.
8. Insurance: During performance of this order and for five (5) years following the last delivery of Products, Seller shall maintain 1) workers’ compensation and employers’ liability insurance per statutory requirements, 2) commercial general liability insurance with minimum limits for bodily injury and property damage on an occurrence basis of $2,000,000 (USD) per occurrence, 3) automobile liability insurance covering all vehicles used in connection with the Products, covering bodily injury and property damage with a minimum limit equal to $2,000,000 (USD) per accident, 4) to the extent applicable to Seller’s performance under this order, professional errors and omissions insurance covering the activities of Seller written on an occurrence basis with a minimum limit equal to $5,000,000 (USD) per Occurrence, 5) property loss insurance with a minimum limit equal to $1,000,000 (USD) per occurrence, and 6) excess liability insurance of not less than $10,000,000 (USD) per occurrence. In the event Seller voluntarily obtains additional insurance, Buyer Group shall be entitled to the benefits thereof (except to the extent mandated by applicable law). Seller shall furnish Buyer annually with certificates of insurance evidencing the insurance coverages required by this order. Insurers and underwriters shall be satisfactory to Buyer, and authorized to do business in the jurisdiction where Products are being provided, and have an A.M. Best rating of at least A-/VII. All of Seller’s insurance policies required hereunder (except workers’ compensation) shall be endorsed to name Buyer Group as additional insured, contain a waiver on the part of insurer, by subrogation or otherwise, of all rights against Buyer Group and contain a clause providing that such insurance is primary and non-contributory with respect to any insurance Buyer Group may maintain.
9. Indemnification (General): SELLER SHALL PROTECT, INDEMNIFY, DEFEND AND HOLD BUYER, ITS AFFILIATES, AND ITS AND THEIR INDIRECT OR DIRECT CUSTOMERS, AND THE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS, AGENTS, REPRESENTATIVES, CONTRACTORS (OTHER THAN ANY MEMBER OF SELLER GROUP, DEFINED BELOW), AND INVITEES OF EACH OF THE FOREGOING (COLLECTIVELY, “BUYER GROUP”) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LAWSUITS, JUDGMENTS, DAMAGES, FINES, PENALTIES, LOSSES AND EXPENSES, INCLUDING COURT COSTS, EXPERT EXPENSES AND REASONABLE ATTORNEY’S FEES, (COLLECTIVELY, “CLAIMS”) ARISING FROM OR RELATED TO BREACH OF SELLER’S WARRANTIES, REPRESENTATIONS, COVENANTS, OR OBLIGATIONS IN THIS ORDER, LIABILITY ATTRIBUTABLE TO AN ACTUAL OR ALLEGED DEFECT IN THE DESIGN OF, MANUFACTURE OF, OR WARNINGS AND INSTRUCTIONS INCLUDED WITH SELLER GROUP’S PRODUCTS, SELLER’S PERFORMANCE OF THIS ORDER, OR ANY MEMBER OF SELLER GROUP’S NEGLIGENCE, STRICT LIABILITY, OR VIOLATION OF APPLICABLE LAW.
10. Indemnification (Wellsite): TO THE EXTENT THAT SELLER’S PERFORMANCE UNDER THIS ORDER REQUIRES MEMBERS OF SELLER GROUP TO BE PRESENT AT A WELLSITE (DEFINED BELOW) SECTIONS 10(A)-(D) SHALL APPLY IN LIEU OF SECTION 9, ABOVE:
(A) FOR PURPOSES OF THIS SECTION 10: (I) “BUYER ORGANIZATION” MEANS BUYER, ITS AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS, AGENTS, AND REPRESENTATIVES OF EACH OF THE FOREGOING; (II) “SELLER GROUP” MEANS SELLER, ITS AFFILIATES, ITS CONTRACTORS, AND THE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS, AGENTS, REPRESENTATIVES, RESELLERS, AND INVITEES OF EACH OF THE FOREGOING; (III) “THIRD PARTY” MEANS ANY PERSON OR ENTITY WHO IS NOT INCLUDED IN EITHER BUYER ORGANIZATION OR SELLER GROUP; AND (IV) “WELLSITE” MEANS A PHYSICAL LOCATION CONTAINING A WELL DRILLED AND/OR COMPLETED (OR IN THE PROCESS OF BEING DRILLED AND/OR COMPLETED) TO PRODUCE OR DISPOSE OF OIL, GAS, OTHER MINERALS, GEOTHERMAL ENERGY, OR WATER.
(B) SELLER SHALL BE LIABLE FOR, AND HEREBY RELEASES, ALL CLAIMS AGAINST BUYER GROUP WITH RESPECT TO ALL CLAIMS WHICH SELLER MAY SUFFER, SUSTAIN, PAY OR INCUR DIRECTLY OR INDIRECTLY ARISING FROM OR ON ACCOUNT OF BODILY INJURY TO OR DEATH OF ANY PERSONS IN THE SELLER GROUP OR DAMAGE TO OR LOSS OF PROPERTY OWNED BY A MEMBER OF THE SELLER GROUP ARISING OUT OF OR RELATING TO THIS ORDER. IN ADDITION, SELLER SHALL DEFEND AND INDEMNIFY BUYER GROUP AGAINST ALL CLAIMS WHICH MAY BE BROUGHT AGAINST BUYER GROUP OR WHICH BUYER GROUP MAY SUSTAIN, PAY, OR INCUR, DIRECTLY OR INDIRECTLY ON ACCOUNT OF: (1) BODILY INJURY TO OR DEATH OF ANY PERSON IN THE SELLER GROUP, OR LOSS OF OR DAMAGE TO ANY PROPERTY OWNED BY A MEMBER OF THE SELLER GROUP, OR (2) BODILY INJURY OR DEATH OF ANY THIRD PARTY OR LOSS OF OR DAMAGE TO ANY PROPERTY OWNED BY A THIRD PARTY THE EXTENT RESULTING FROM ANY NEGLIGENT ACT OR WILLFUL MISCONDUCT OF ANY PERSON WITHIN THE SELLER GROUP, OR (3) ALLEGATIONS OF ANY KIND OR CHARACTER ALLEGING INFRINGEMENT OR VIOLATION OF ANY INTELLECTUAL PROPERTY BY THE PRODUCTS, OR (4) BREACH BY SELLER GROUP OF ANY OF THE REPRESENTATIONS, WARRANTIES, COVENANTS, OR OBLIGATIONS UNDER THIS ORDER.
(C) BUYER SHALL BE LIABLE FOR, AND HEREBY RELEASES, ALL CLAIMS AGAINST SELLER GROUP WITH RESPECT TO ALL CLAIMS WHICH BUYER ORGANIZATION MAY SUFFER, SUSTAIN, PAY OR INCUR DIRECTLY OR INDIRECTLY ARISING FROM OR ON ACCOUNT OF BODILY INJURY TO OR DEATH OF ANY PERSONS IN THE BUYER ORGANIZATION OR DAMAGE TO OR LOSS OF PROPERTY OWNED BY A MEMBER OF THE BUYER ORGANIZATION ARISING OUT OF OR RELATING TO THE ORDER. IN ADDITION, BUYER SHALL DEFEND AND INDEMNIFY SELLER GROUP AGAINST ALL CLAIMS WHICH MAY BE BROUGHT AGAINST SELLER GROUP OR WHICH SELLER GROUP MAY SUSTAIN, PAY, OR INCUR, DIRECTLY OR INDIRECTLY ON ACCOUNT OF: (1) BODILY INJURY TO OR DEATH OF ANY PERSON IN THE BUYER ORGANIZATION, OR LOSS OF OR DAMAGE TO ANY PROPERTY OWNED BY A MEMBER OF THE BUYER ORGANIZATION, OR (2) BODILY INJURY OR DEATH OF ANY THIRD PARTY OR LOSS OF OR DAMAGE TO ANY PROPERTY OWNED BY A THIRD PARTY TO THE EXTENT RESULTING FROM ANY NEGLIGENT ACT OR WILLFUL MISCONDUCT OF ANY PERSON WITHIN THE BUYER ORGANIZATION.
(D) SEPARATE AND INDEPENDENT FROM ANY OTHER INSURANCE PROCUREMENT REQUIREMENTS IN THIS ORDER, BUYER AND SELLER AGREE TO EACH CARRY INSURANCE IN SUPPORT OF THEIR RESPECTIVE INDEMNITY OBLIGATIONS UNDER SECTION 10 IN MUTUALLY AGREED AMOUNTS. EACH PARTY AGREES THAT THE MAXIMUM AMOUNT OF SUCH SUPPORTING INSURANCE SHALL BE THE AMOUNT REQUIRED TO BE CARRIED BY SELLER UNDER SECTION 8. IF A PARTY DOES NOT CARRY INSURANCE IN THE REQUIRED MUTUALLY AGREED AMOUNT, SUCH PARTY WILL BE DEEMED TO BE SELF-INSURED IN AN AMOUNT EQUAL TO THE AMOUNT OF INSURANCE CARRIED BY THE OTHER PARTY IN COMPLIANCE WITH THIS SECTION 10(D).
11. Liability: TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW: A) EXCEPT AS OTHERWISE SPECIFIED HEREIN, THE INDEMNIFICATION, DEFENSE, RELEASE, PROTECTION AND HOLD HARMLESS OBLIGATIONS AND LIMITATIONS IN THIS ORDER APPLY REGARDLESS OF WHETHER A CLAIM IS IN CONTRACT, TORT (INCLUDING THE SOLE, JOINT OR CONCURRENT, ACTIVE OR PASSIVE, ORDINARY OR GROSS NEGLIGENCE OF ANY INDEMNIFIED PERSON OR ENTITY HEREUNDER), OR IS RELATED TO A LIABILITY RESULTING FROM THE APPLICATION OF DOCTRINES OF STRICT LIABILITY OR STATUTORY FAULT OR THE UNSEAWORTHINESS OF ANY VESSEL OWNED, CHARTERED OR OPERATED BY ANY MEMBER OF BUYER GROUP; B) BUYER GROUP’S ENTIRE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE PRODUCTS OR THIS ORDER SHALL NOT EXCEED THE LESSER OF THE PRICE PAID BY BUYER TO SELLER FOR THE PRODUCTS GIVING RISE TO THE CLAIM, OR THE AMOUNT PAID BY BUYER PURSUANT TO THIS ORDER; AND, C) BUYER GROUP SHALL NOT BE LIABLE FOR ANY SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, STATUTORY DAMAGES, LIQUIDATED DAMAGES, EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUE, BUSINESS INTERRUPTION, OR LOSS OF REVENUE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY HERETO AGREES AND COVENANTS THAT IT WILL NOT CONTEST ON ANY BASIS THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF THIS ORDER INCLUDING, WITHOUT LIMITATION, ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT “CONSPICUOUS”.
12. Language/Laws: This order shall be construed in accordance with the laws of the state of delivery. All disputes arising out of or related to this order shall be resolved in state or federal courts in Houston, Texas. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods. The parties have expressly required that these terms and conditions be prepared in the English language.
13. Notice: All notices hereunder shall be sent by courier, or sent by certified mail, return receipt required, or overnight carrier to Buyer or to Seller at the address set forth in this order.
14. Assignment and Sub-Contracts: Buyer may assign this order at any time. Seller may not assign this order without the prior written consent of Buyer. Furthermore, Seller may not sub-contract any work, services or obligations arising hereunder, in whole or in part, to any third party without the prior written consent of Buyer. Such consent may be withheld by Buyer for any reason. This order shall extend to and be binding upon the parties hereto, their successors, and assigns.
15. Patents: To the extent Intellectual Property is created, conceived or invented, or is first reduced to practice, by or on behalf of Seller, in connection with this order, Seller shall promptly disclose the IP (“Development IP”) to Buyer and the IP shall be owned by Buyer (or its designee). To effect the parties’ intent in this regard, Seller hereby assigns and agrees to assign all right, title and interest in and to all Development IP to Buyer for no additional consideration or compensation. To the extent Buyer or its customers need a license to use or otherwise fully enjoy Development IP or any pre-existing Intellectual Property (that is, IP that exists prior to or independent of this order) embodied in or by any Products, Seller hereby grants Buyer a worldwide, royalty free, irrevocable license, with the right to grant sublicenses to its customers, to make, use, sell, reproduce, distribute, perform, display and create derivative works of any and all such pre-existing IP. Seller further agrees, for no additional consideration or compensation, to execute any and all documents and do any and all further acts requested by Buyer to effect the intent and purpose of this order.
16. Non-Waiver: Waiver of any breach or failure to enforce any of the terms or conditions of this order or course of conduct at any time shall not limit or waive either party’s rights thereafter to enforce or compel strict compliance with every term and condition of this order.
17. Confidentiality: Seller shall treat as confidential any information it receives in the course of performing under this order or that it receives otherwise from or concerning Buyer or its affiliates or customers (collectively, “Confidential Information”). Seller will not disclose Confidential Information to third parties and will take all available actions to safeguard Confidential Information, and Seller shall not use Confidential Information except in performance of its obligations under this order. Promptly upon termination or at the request of Buyer, whichever occurs first, Seller shall return to Buyer or destroy, as directed by Buyer, all Confidential Information disclosed to Seller.
18. Compliance: Seller warrants that it has not given nor received any commissions, payments, gifts, kickbacks, lavish, or extensive entertainment or other things of value to or from any employee or agent of Buyer or any third party in connection with this purchase order and acknowledges that the giving or receiving of any such payments, gifts, entertainments, or other things of value is strictly in violation of Buyer’s corporate policy and may result in the cancellation of this and all future orders. Seller shall notify Buyer’s security department of any such solicitation by any of Buyer’s employees, agents or any third party. Seller warrants that it and its subcontractors will comply with and all Products will be produced, sold and delivered in compliance with all applicable laws, rules, and regulations, to the extent not inconsistent with United States law, including without limitation, where applicable: the United States Foreign Corrupt Practices Act; Toxic Substances Control Act (including report provisions); the Fair Labor Standards Act of 1938, as amended; the Federal and State Department of Transportation Regulations, including packaging regulations; the William-Steiger Occupational Safety and Health Act of 1970 as amended; the Federal Mine and Safety and Health Act of 1977 and other safety or health laws; Executive Order 11246 (Equal Employment Opportunity); the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended; Section 503 of the Vocational Rehabilitation Act of 1973, as amended; 29 CFR Part 471, Appendix A; Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era (41 CFR 60-250.4); Affirmative Action for Handicapped Workers (41 CFR 60.1.40(A)); Federal Procurement Regulations relating to Minority Business Enterprises; and all environmental laws, including the Clean Air Act (42 USC 1857) and the Federal Water Pollution Control (33 USC 1251). Seller shall not comply with any foreign boycott laws or requirements which are in violation of any United States law. Seller shall obtain and maintain all licenses, permits, or other approvals required by applicable authorities related to the performance, production, sale, use, import, and export of all Products, to the extent not inconsistent with United States law. Seller represents and warrants that its products do not contain conflict minerals sourced from the Democratic Republic of the Congo or any adjoining country, or that finance armed groups in such countries, and agrees to provide Buyer with such information regarding conflict minerals in Seller’s products as Buyer may reasonably request, including certification as to the source of such conflict minerals.
19. Audit: Buyer has the right to expedite all or part of this order. In addition, Buyer has the right to audit and inspect, at any reasonable time during or subsequent to performance of this order, Seller’s and its subcontractor’s books, records, inventory, tooling, and plants to assure compliance with this order or any applicable law.
20. Hazardous Material: Upon acceptance of this order for ultimate shipment by any mode of transportation, the Seller certifies that the contents of the shipment are described by proper shipping name and are classified, packed, marked, labeled, and in proper condition for carriage by the selected mode of transportation according to applicable national government regulations and for international shipment with the current IATA/ICAO/IMCO Restricted Articles Regulations and agrees to defend and indemnify Buyer against any violations of these regulations.
21. Cancellation: Buyer may cancel this order, in whole or in part, at any time prior to shipment, without liability to Seller, and any time following shipment with liability to Seller in the amount of a reasonable cancellation fee as determined by Buyer. Seller will refund all amounts pre-paid by Buyer for the order within thirty days of Buyer’s cancellation.
22. Payment: Buyer will specify which of the following methods Seller must use in submitting this invoice: a) U.S. Postal Mail, b) e-mail c) SAP Ariba Supplier Portal, or d) electronic data interface (EDI). Failure to submit invoices via the specified invoicing method will result in delayed payment or refusal to pay for any and all goods and services on this order. Buyer shall pay undisputed amounts owed to Seller for Products within 60 days of the Buyer’s receipt of a correct invoice. Seller acknowledges and agrees that any invoice not received by Buyer within ninety (90) days after Products have been performed or delivered shall be time barred and shall not be paid unless there has been advance written consent by Buyer with respect to such delay. Buyer may deduct any amount owed by Seller to Buyer as a setoff against any amount due to Seller. Seller agrees to allow no claim, lien or charge to be fixed upon the property of Buyer or any parties for whom Buyer provides goods or performs services (collectively, the “Lienable Property”). Seller further agrees not to issue any notices, instruments or other declarations to any person or entity regarding Seller’s ability or intent to file claims, liens or charges against the Lienable Property. Seller agrees to indemnify, protect, defend, and hold Buyer Group harmless from and against all such claims, charges, and liens. Before payments are made by Buyer to Seller, Buyer may require Seller to furnish proof that there are no unsatisfied claims for labor, materials, equipment, and supplies or for injuries to persons or property not covered by insurance.
23. Severability: If any provision of this order is invalid, illegal, or unenforceable in any jurisdiction, for any reason, the invalidity, illegality, or unenforceability of that provision will not affect any other provision in this order, but the invalid, illegal, or unenforceable provision will be substituted with a valid provision that most closely approximates the intent and the economic effect of the original provision and that would be enforceable to the maximum extent permitted in the jurisdiction.