Catalyst Artificial Lift, LLC
TERMS AND CONDITIONS OF SALE
(Applicable to All Bid Forms, Quotations, Sales, Invoices and Delivery Tickets)
THIS AGREEMENT CONTAINS PROVISIONS RELATING TO ALLOCATION OF RISK, INCLUDING BUT NOT LIMITED TO INDEMNITY, RELEASE, LIMITATION OF LIABILITY AND INSURANCE REQUIREMENTS.
PAYMENT: Terms of payment are net thirty (30) days following invoice date, unless otherwise stated on the face of this invoice. Customer agrees that any past due amounts shall bear interest from the date due until paid at the rate equal to the highest lawful rate permitted by the State of Texas or the United States of America, whichever lawfully permits the highest rate, it being understood and agreed by Customer that Vendor may charge and collect the maximum non-usurious rate of interest permitted by applicable laws in effect from time to time. If any proceeding or suit is instituted against Customer to recover any past due amounts, then Vendor is entitled to recover all of its costs and expenses related thereto, including its reasonable attorneys’ fees. In the event of non-payment, Vendor may also file and foreclose any and all applicable liens in an effort to secure payment from Customer.
RETURNS, CANCELLATIONS AND CLAIMS: No goods may be returned, credited or replaced, unless prior to their return, arrangements for such return have been made and approved in writing by Vendor. In the event that Vendor should so approve a return of goods, Vendor may apply up to a twenty percent (20%) restocking charge or such higher amounts as charged by similarly situated third-party vendors, whichever is higher, plus all freight, taxes and other costs relating to such return. Orders for goods or parts of special design, size or materials, including, but not limited to, goods that have been maintained or acquired by Vendor either at the specific request of Customer or for the benefit of Customer, are not subject to cancellation or return. Goods that are carried in Vendor’s normal inventory which have been delivered as ordered, if approved for return, may be returned for credit only, and only if in Vendor’s sole judgment, they are unused and in re-saleable condition and if returned within thirty (30) days from date of delivery. Claims for shortages or damage, or deductions for erroneous charges, must have Vendor’s prior written approval and must be presented within thirty (30) days of receipt of goods by Customer or its representatives.
PRICES: All quotations and sales are F.O.B. point of shipment, unless otherwise expressly stipulated; all quotations and prices therein are subject to change without notice and to availability and, unless otherwise specified, are for immediate acceptance by Customer. Customer agrees to pay Catalyst Artificial Lift, LLC (hereinafter referred to as “Vendor”), for any goods or services (sometimes collectively referred to as the “Work”) ordered in accordance with prices quoted to Customer or in accordance with prices in effect at the time the same are furnished, whichever is greater; all prepaid freight, express and drayage charges are Net Cash. Prices are exclusive of all taxes – federal, state or local, unless otherwise noted. Any sales or other tax or duty which Vendor may be required to collect or pay will be added to the price; if such amounts are not included in this invoice, they may be invoiced separately.
SHIPMENT, INSURANCE, AND FREIGHT: Vendor shall use reasonable efforts to have the goods available for shipment by Customer’s preferred date, but cannot guarantee delivery dates. Customer shall pay all costs for insurance and freight. Vendor may fill Customer’s order by separate shipments of various portions of the goods, and such order is severable as to all such shipments. Packing, crating, shipment to packers or to dock side, customs charges and all other costs relating to shipment exportation and importation shall be at Customer’s expense.
DELIVERY, STORAGE, TITLE AND RISK OF LOSS: Delivery, title and risk of loss will pass to Customer upon the date the Vendor notifies Buyer that the goods are ready for delivery to Customer or Customer’s agent or carrier, EX WORKS Point of Shipment. Customer shall be responsible for arranging shipping and for all shipping costs. If Vendor has not received shipping instructions at the time of delivery or if Customer requests that Vendor store the goods until further instruction, Vendor shall act as a bailee of such goods and may charge Customer Vendor’s customary storage rates. During any such bailment, Customer will maintain all-risk property insurance on the goods, at its replacement value, and Vendor will not be liable for deterioration of goods resulting from atmospheric conditions, acts of God, or other events not within Vendor’s reasonable control.
LIMITATION OF LIABILITY: Notwithstanding anything herein or otherwise to the contrary, express or implied, Vendor’s sole liability for any claim or action of any kind arising out of, in connection with or resulting from the manufacture, sale, rental, delivery, resale, use or repair of the Work furnished by Vendor shall not exceed Vendor’s price for the Work which gives rise to such claim or action; and Vendor shall in no event be liable for special, indirect, punitive, incidental, exemplary or consequential damages or contingent liabilities arising out of any order covered hereby or the Work or the failure of any goods to operate properly, including any damages occasioned by delay, downtime, lost business opportunity, lost profits, lost revenues, loss of or damage to the hole, lost hydrocarbons, lost production or reserves, or otherwise. CUSTOMER RELEASES VENDOR AND ASSUMES ALL LIABILITY FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THE POSSESSION, USE OR APPLICATION OF THE WORK, EITHER ALONE OR IN COMBINATION WITH OTHER GOODS, INCLUDING, BUT NOT LIMITED TO, INJURY TO, DESTRUCTION OF, OR LOSS OR IMPAIRMENT OF (I) ANY FORMATION, STRATA, OR RESERVOIR BENEATH THE SURFACE OF THE EARTH, (II) ANY RIGHTS IN OR TO REAL PROPERTY, (III) ANY RIGHT IN OR TO ANY WATER SOURCE OR WATER BODY, OR (IV) ANY PROPERTY RIGHT IN OR TO OIL, GAS, OR OTHER MINERAL SUBSTANCE OR WATER, IF AT THE TIME OF THE ACT OR OMISSION CAUSING SUCH INJURY, DESTRUCTION, LOSS, OR IMPAIRMENT, SAID SUBSTANCE HAD NOT BEEN REDUCED TO PHYSICAL POSSESSION ABOVE THE SURFACE OF THE EARTH.
LIMITED WARRANTY: Provided that Customer subjects the goods only to operating conditions specified by Customer when the order is placed, if any, and operates it in accordance with Vendor’s written operating instructions, if any, Vendor warrants goods sold pursuant hereto to be free of defects in material and workmanship for a period of 1 year after the date the goods are delivered. The above warranty does not apply to: (i) used goods or goods that have been repaired or worked over; (ii) goods that have been modified or subjected to improper handling, storage, installation, operation or maintenance by Customer, including use of unauthorized replacement parts; (iii) parts requiring replacement because of normal wear and tear; (iv) design on those jobs where Vendor prepared drawings, lists or bills of material from designs furnished by others; and (v) models or samples furnished to Customer as illustrations only of general properties of equipment. This warranty will not apply if Customer, on request by Vendor, does not return the defective part to Vendor for inspection, freight prepaid. Vendor’s liability for breach of this warranty is expressly limited to the repair or replacement, at its sole option, of any goods which prove to be defective during the warranty period. All parts repaired or replaced hereunder shall be repaired or replaced F.O.B. location from which goods are shipped. VENDOR’S OBLIGATION TO REPAIR OR REPLACE CONSTITUTES AGREED AND LIQUIDATED DAMAGES FOR ANY BREACH OF VENDOR’S WARRANTY. THIS LIMITED EXPRESS WARRANTY, AND THE STATED REMEDIES FOR BREACH THEREOF, SHALL BE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES FOR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND IN LIEU OF LIABILITY FOR VENDOR’S NEGLIGENCE OR FAULT. VENDOR WILL NOT BE RESPONSIBLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND. Notice of defective products or services must be given in writing to Vendor by the Customer. Customer or user of the products must keep the products in unaltered condition for examination by Vendor representative. All warranty claims must be made within ten (10) days after discovery, or after such claims should have been discovered, or else be barred from any remedy.
INDEMNIFICATION: VENDOR GENERAL INDEMNITY OBLIGATION. TO THE FULLEST EXTENT PERMITTED BY LAW, VENDOR WILL BE RESPONSIBLE FOR AND SHALL RELEASE, PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS CUSTOMER FROM AND AGAINST ANY AND ALL CLAIMS, INCLUDING ANY CLAIMS ARISING FROM THE NEGLIGENCE OF CUSTOMER, FOR PERSONAL INJURY, ILLNESS, DEATH, AND/OR PROPERTY DAMAGE OR LOSS BROUGHT BY OR THROUGH ANY MEMBER OF VENDOR, UNLESS SUCH CLAIM AROSE DUE TO THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF CUSTOMER.
CUSTOMER GENERAL INDEMNITY OBLIGATION. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER WILL BE RESPONSIBLE FOR AND SHALL RELEASE, PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS VENDOR FROM AND AGAINST ANY AND ALL CLAIMS, INCLUDING ANY CLAIMS ARISING FROM THE NEGLIGENCE OF VENDOR, FOR PERSONAL INJURY, ILLNESS, DEATH, AND/OR PROPERTY DAMAGE OR LOSS BROUGHT BY OR THROUGH ANY MEMBER OF CUSTOMER, UNLESS SUCH CLAIM AROSE DUE TO THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF VENDOR. SAID INDEMNITY OBLIGATION SHALL BE SUPPORTED BY SUFFICIENT AMOUNTS OF LIABILITY INSURANCE BUT IN NO EVENT SHALL SUCH AMOUNT BE LESS THAN US $500,000 OF LIABILITY INSURANCE TO BE FURNISHED BY CUSTOMER.
STORED GOODS AND INDEMNITY BY CUSTOMER: In the event that Customer goods are stored at Vendor’s facility for any reason, Customer shall arrange for removal of such goods within sixty (60) days or within some other agreed upon time period (the “Removal Period”) following Vendor’s notice to Customer that such goods are ready for shipment. Unless otherwise agreed in writing by Vendor, after the Removal Period (in addition to all other rights of Vendor), Vendor, at its sole option and at any time, may (i) ship such goods to Customer whether it be at Customer’s expense or not subject to Vendor’s sole discretion; or (ii) deem the goods abandoned and sell such goods and apply the proceeds to Vendor’s expenses associated with such storage and/or sale of goods. CUSTOMER ACKNOWLEDGES THAT STORAGE OF ITS GOODS AT VENDOR’S FACILITY IS AT ITS SOLE RISK AND AGREES THAT IT IS THE SOLE RESPONSIBILITY OF CUSTOMER TO INSURE SUCH GOODS AT ITS OWN EXPENSE WHILE IN STORAGE AT VENDOR’S FACILITY. FURTHER, CUSTOMER RELEASES AND SHALL INDEMNIFY AND HOLD VENDOR GROUP HARMLESS FROM ANY CLAIM, LIABILITY OR OBLIGATION ARISING, DIRECTLY OR INDIRECTLY, FROM THE STORAGE, REMOVAL, RETURN, SALE, TRANSFER OR DISPOSAL OF SUCH GOODS, AND NOTWITHSTANDING THE NEGLIGENCE, FAULT OR STRICT LIABILITY OF VENDOR. SAID INDEMNITY OBLIGATION SHALL BE SUPPORTED BY SUFFICIENT AMOUNT OF LIABILITY INSURANCE BUT IN NO EVENT SHALL SUCH AMOUNT BE LESS THAN U.S. $500,000 OF LIABILITY INSURANCE TO BE FURNISHED BY CUSTOMER.
CONSIGNED GOODS: Notwithstanding anything to the contrary and whenever applicable, in consideration of Vendor’s consigning products either on-site or in a trailer as requested by the Customer, Customer warrants and agrees that at all times while such products and trailer, if applicable, are in the possession or control of Customer, Customer will properly and adequately safeguard products and trailer, if applicable, and HOLD HARMLESS, DEFEND AND INDEMNIFY VENDOR GROUP (THE “INDEMNIFIED PARTIES”), WITH REGARD TO (I) ANY DAMAGE TO, THEFT OR LOSS OF SUCH GOODS AND SUCH TRAILER, IF APPLICABLE, FOR THE FULL REPLACEMENT VALUE THEREOF, AND (II) WITH REGARD TO ANY AND ALL CLAIMS, DEMANDS, SUITS, AND CAUSES OF ACTION FOR PERSONAL INJURY (INCLUDING DEATH) AND PROPERTY DAMAGE THAT MAY BE BROUGHT BY ANY PERSON WHOMSOEVER (WITH EXCEPTION OF ANY INDEMNIFIED PARTIES) AGAINST ANY OR ALL OF THE INDEMNIFIED PARTIES THAT MAY ARISE OUT OF THE USE, POSSESSION OR PRESENCE ON CUSTOMER’S SITE OF SUCH GOODS AND TRAILER, IF APPLICABLE. Further, Vendor reserves the right at any time to further memorialize the terms of consignment by requesting that Customer execute a separate consignment agreement.
ENFORCEMENT: Customer and Vendor agree that the exclusive forum for the adjudication of any controversy or dispute relating to the construction, interpretation of or performance under or any matter relating to these conditions, this agreement, and/or the Work (including any goods) furnished by Vendor shall be the state or federal courts located in Harris County, State of Texas, and both parties hereby consent to the personal jurisdiction of such courts for all such purposes. These terms and conditions constitute the final, complete and exclusive agreement between Vendor and Customer, and the parties’ agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to the choice of law rules, statutes, or laws thereof that may require the application of the law of another jurisdiction. Should any provision hereof be held invalid or illegal, such holding shall not affect the validity of the remaining provisions. Vendor’s terms control, and any failure to object to Customer’s contrary provisions contained elsewhere or to enforce any or all of these provisions in a particular instance shall not act as acquiescence to Customer’s terms or a waiver of these terms and conditions. Acceptance of the Work or Vendor’s offer to provide the Work is expressly limited to the terms and conditions contained herein, and any additional or different terms of Customer are hereby rejected. No conditions, other than those stated herein, and no agreement or understanding, oral or written, in any way purporting to modify or negate these terms and conditions, whether contained in Customer’s order form, offer, or acknowledgment, or in any other of Customer’s forms or elsewhere, shall be binding on Vendor, unless agreed to in writing and executed by an officer of Vendor. No agent, employee, or representative of Vendor is authorized to alter any of these conditions nor to agree to any conditions or other provisions whatsoever outside those stated herein.
PATENT INDEMNIFICATION: Vendor agrees to indemnify Customer against costs and liabilities arising from claims by third parties that the sale or manufacture, but not the use, of goods provided hereunder infringe any valid United States Patent, subject to and provided that Customer immediately notifies Vendor in writing of any such claim; Vendor shall have exclusive control of litigating or settling the claim; and Customer shall assist Vendor in the defense of the claim as Vendor may reasonably request. In the event that Customer’s use of the goods is enjoined, Vendor, in its sole discretion, shall have the option to (i) obtain a license for Customer to use the goods, (ii) modify the goods so as to make them substantially equal but non-infringing, (iii) replace the goods with goods that are substantially equal but non-infringing, or (iv) remove the goods and refund the purchase price already paid to Vendor. This indemnification shall not apply to consequential or indirect combination of the goods with other goods not supplied by Vendor, or to goods supplied to meet Customer’s special specifications. AS TO THE WORK (INCLUDING ANY GOODS) FURNISHED, IN WHOLE OR IN PART, TO CUSTOMER’S DESIGN AND/OR SPECIFICATIONS, CUSTOMER AGREES TO DEFEND, HOLD HARMLESS AND INDEMNIFY VENDOR WITH REGARD TO ANY DEMAND, CLAIM, CAUSE OF ACTION, LAWSUIT OR OTHER PROCEEDING (INCLUDING ATTORNEYS’ FEES AND RELATED COSTS) BROUGHT AGAINST VENDOR, GROUP ON ACCOUNT OF INFRINGEMENT OF ANY PATENT, DESIGN, COPYRIGHT, TRADEMARK, TRADE NAME OR OTHER INTELLECTUAL PROPERTY RIGHT IN CONNECTION WITH SUCH GOODS OR WORK; THIS PROVISION SHALL ALSO EXTEND IN FAVOR OF ANY APPLICABLE MANUFACTURER, SUPPLIER, AND ANY THIRD-PARTY BENEFICIARY CLAIMING BY, THROUGH, OR UNDER VENDOR.
FORCE MAJEURE: The consequences, direct or indirect, of labor troubles, Acts of God (including hurricanes, tornadoes, earthquakes, tsunamis, landslides, fires, or floods), accidents, hostilities, shortage of transportation, failure or suspension or curtailment of production due to shortage of labor or supply of raw materials, or other economic factors, government acts or requirements and any and all like or different causes beyond the control of the parties hereto shall excuse performance, except payment by either party to the extent by which performance is prevented thereby. Vendor may, during any period of shortage due to any of said causes, prorate its supply of such goods among all its customers in such manner as may be deemed equitable in Vendor’s sole and absolute discretion.
REMEDIES: The rights and remedies reserved to Vendor shall be cumulative and additional to all other remedies provided by law or in equity. Vendor shall be entitled to recover costs and attorneys’ fees in the enforcement or defense of any rights hereunder. Customer expressly agrees that Vendor may, upon prior notice and at its expense, audit the books and records of Customer referring or relating to the Work (including, but not limited to, any documents relating to (i) payment for the Work; (ii) Customer’s current financial condition; and (iii) any disposition or subsequent transfer, by resale or otherwise, of any goods furnished by Vendor).
MISCELLANEOUS: Vendor and Customer further expressly agree as follows. Vendor is not responsible for ascertaining the particular use, suitability, application, intended use, or the like, regarding the Work, including goods, furnished by Vendor to Customer, NOR SHALL VENDOR HAVE ANY LIABILITY WHATSOEVER IN CONNECTION WITH (WITHOUT LIMITATION) THE DESIGN, CONDITION, DURABILITY, PERFORMANCE, APPLICATION, OR ACTUAL OR INTENDED USE OF SUCH GOODS OR WORK, IT BEING VENDOR’S SOLE OBLIGATION TO FURNISH THE SAME IN ACCORDANCE WITH CUSTOMER’S WRITTEN SPECIFICATIONS OR DESCRIPTIONS. Customer shall provide Vendor with accurate, complete and written specifications and/or descriptions for the Work (including goods) ordered. Where Customer’s specifications and/or descriptions permit a variety of choices, Customer shall accept the Work (including goods) meeting so called “broad specifications.” Time is of the essence as to all time periods stated herein, except delivery dates which are estimated. All captions are for convenience only and do not constitute a part of these conditions. In the event of any breach or default of these conditions by Customer, Vendor may employ a representative or attorney to remedy such breach or default, and Customer shall pay to Vendor all costs, expenses and fees, including reasonable attorneys’ fees, incurred by Vendor in the enforcement hereof and the obtaining of such remedy. Customer represents and warrants to Vendor that Customer has not ceased to pay its debts in the ordinary course of business, that it can pay its debts as they become due, and that it is and continues to be solvent within the meaning of the Federal Bankruptcy Act. Vendor and Customer shall perform hereunder strictly in conformance with and subject to (in their present form or as hereafter amended) all applicable laws and governmental orders, rules and regulations of the United States of America and of any State or municipality thereof, including, but not limited to, all United States export control laws and regulations, and the United States “Foreign Corrupt Practices Act of 1977.” THE “U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS” AND THE “CONSTITUTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS” SHALL NOT GOVERN NOR APPLY TO ANY MATTERS ADDRESSED HEREIN OR RELATED HERETO.