Terms and Conditions
As used throughout these Standard Terms and Conditions, the term "Buyer” means Stabiltec Downhole Tools, L.L.C.  The term "Seller” means the person, firm or company to whom a purchase order is addressed.  All goods (including, without limitation, all personal property of every type, kind and description) and services (including, without limitation, design, delivery, installation, inspection, testing or other work) specified or required to be furnished to Buyer under this purchase order are expressly subject to the terms and conditions set forth below.  Any different or additional terms and conditions in Seller’s quote, invoice or other communications are objected to, shall not be binding on Buyer unless expressly agreed to in writing by Buyer.  This order shall be the exclusive agreement between the parties with respect to the subject matter hereof.  Seller’s written acknowledgement of, commencement of performance of services or shipment of goods shall constitute complete acceptance of the terms and conditions set forth below.
 
1. MODIFICATION; TERMINATION: Cancellations, modifications and waivers by Seller of this order or of any of these terms and conditions shall not be effective without Buyer’s express, written consent; nor shall they be modified by any course of dealing or trade customs and usage.  Buyer may make changes in the drawings, specifications, quantities, delivery schedules, services, or methods of shipment or packaging on any item at any time by written change order.  If any such change results in a delay or a change in expense to Seller, an equitable adjustment may be provided if Seller notifies Buyer within 20 days from the date of the change order for any claim for adjustment or it shall be deemed waived.  Seller shall not commence or continue work until Seller has notified Buyer of such difference and Buyer has given its written consent. Buyer may, at any time for any reason in its sole discretion, terminate this order, as to all or any portion of the goods and/or services not delivered.  Buyer shall pay Seller for reasonable and verifiable costs incurred before termination that are not recoverable in the normal course of business, that are not related to items which are Seller’s standard stock and that are detailed in a written claim delivered to Buyer by Seller within 30 days of termination; provided, however, that in no case shall the cost exceed the purchase price in the order.  No such termination shall relieve Buyer or Seller of any of their obligations as to any goods delivered in accordance with the order before termination.  Notwithstanding the foregoing, in addition to all other rights Buyer may have at law and equity, in no case shall Buyer be obligated to pay any such costs to Seller if Buyer terminates this order in response a breach by Seller.

2. INSPECTION; ACCEPTANCE; TITLE:  Seller shall be responsible for the performance of all activities affecting quality, including that of its suppliers.  Buyer shall have the right to inspect and test the goods at any time during manufacture and prior to shipment, and to final inspection within a reasonable time after arrival at the ultimate destination.  If, prior to final inspection, any goods are found to be defective or not as specified, Buyer may reject them and require Seller to correct them without charge or cost to Buyer, or require delivery of such goods at a reduction in price which is equitable under the circumstances.  The making or failure to make any inspection of, or payment for or acceptance of the goods, shall in no way impair Buyer’s right to reject nonconforming goods, or to avail itself of any other remedies to which Buyer may be entitled, notwithstanding Buyer’s knowledge of the nonconformity, its substantiality or the ease of its discovery.  At Buyer’s option, nonconforming goods shall be returned to Seller at the risk and expense (including transportation and handling costs) of Seller.  Seller warrants full, clear and unrestricted title to Buyer for all equipment, materials, and items furnished by Seller in the performance of any purchase order, free and clear of any and all liens, restrictions, reservations, security interests, and encumbrances and claims of others.  Title to the purchased equipment, materials and items shall transfer to Buyer upon delivery to Buyer’s premises of such property, accepted by Buyer.

3. PRICE:  Prices specified in this order are not subject to increase unless expressly authorized by Buyer in writing.  Buyer shall receive Seller’s standard or negotiated discount (whichever is greater) whether or not the discount is shown on Seller’s invoice.  Unless otherwise provided, the price includes all applicable federal, state and local taxes in effect on the date of the order.  In case of new taxes or the repeal of taxes or a change in rates, the price shall be adjusted accordingly.  Seller shall provide Buyer prompt notice of such adjustment.  The established price as reflected in the purchase order for goods covered by any purchase order shall include proper packing for safe domestic transportation via the mode designated in the purchase order (if any) and shall also include all customary loading and securing on the carrier’s equipment at the shipping point.  NO ALLOWANCE WILL BE MADE FOR PACKING, CARTAGE, OR CRATING COSTS of items covered by a purchase order unless specifically authorized in the purchase order.

4. DELIVERY TERMS; RISK OF LOSS; INVOICES:  Time is of the essence.  If delivery is delayed beyond the specified delivery date by events or causes other than those enumerated in "Force Majeure,” Buyer shall have the right to cancel the unfilled portion of this order without further obligation to Seller, and Buyer shall have the right to place the unfilled portion of the order with another supplier(s) without notice, and any consequential increase in cost to Buyer shall be paid by Seller. Unless otherwise stated, terms are DDP (Incoterms 2010) the destination designated for delivery by Buyer on the face of the order.  Seller must ensure that all bills of lading, packing slips and invoices include Buyer’s purchase order number.
  
5. SHIPPING:  A packing list in legible form detailing contents must be enclosed in and attached to each package or accompany each bulk delivery, except as otherwise agreed in writing with Buyer.  Each package or container delivered to Buyer shall be labeled such that its contents can be reasonably identified from the exterior of each package.  Seller agrees to ship all goods covered in any particular purchase order via the specified mode, carrier, and routing, and to maintain a complete file of all delivery and shipping documents in the event proof of delivery is required.  C.O.D. and cash collect shipments are prohibited.  Should a discrepancy occur between Buyer’s count and Seller’s itemized packing list, Buyer and Seller shall cooperate in good faith to resolve the discrepancy.  All shipments and deliveries shall be accomplished in accordance with applicable laws and regulations.

6. FORCE MAJEURE:  Seller shall be excused for a delay of delivery of goods or performance of services where such delay is due to restrictions imposed by any governmental regulation, embargoes, riots, storms, fire, accidents, war, act of terrorism or other similar causes beyond Seller’s reasonable control, which Seller could not have reasonably foreseen and protected against.  In the event of any such delay, the date of delivery or of performance may be extended for a period equal to the duration of the delay, but Seller shall not be entitled to any extra compensation for such delay.  Seller shall promptly notify Buyer of any such delay, and, at no additional cost to Buyer, shall take all reasonable steps to avoid or end such a delay.  Any delay in delivery shall permit Buyer to cancel the order or any part thereof.

7. WARRANTIES:  Seller expressly warrants that the goods and/or services shall conform to all samples, specifications, drawings or other descriptions furnished by Buyer, shall be free from defects in material and workmanship, will be of new and unused materials (unless otherwise specified), of first-class workmanship, shall be merchantable and fit and sufficient for the use and purpose intended, shall conform to any and all warranties arising by usage of trade, course of dealing and course of performance, and, if of Seller’s design, shall be free from defects in design.  Such warranties shall survive delivery and shall not be deemed waived either by reason of Buyer’s acceptance of or any payment for any goods and/or services, and shall extend to Buyer and its transferees, including without limitation its customers.  Seller agrees to replace or correct promptly without expense to Buyer any items not conforming to the foregoing requirements as soon as reasonably possible after notification by Buyer.  In the event Seller fails to correct or replace goods or services in a timely manner, Buyer may correct or replace such items and charge Seller the cost thereof without voiding the warranties herein. Such warranties and remedies shall be in addition to, and shall not limit in any way, any other warranties and remedies given by Seller or arising by law.

8. TOOLING:  If the price charged for goods and/or services includes the cost of any tools, designs, patterns, dies, jigs, fixtures, special machines, drawings or the like ("Tools”) acquired for the purpose of filling this order, such Tools shall be the exclusive property of Buyer and shall be disposed of as the Buyer shall direct. Tools supplied by Buyer shall be and remain the exclusive property of Buyer, shall be subject to removal at any time upon demand made by Buyer, without additional cost to Buyer, and shall not be used for the manufacture of any articles other than those expressly ordered by Buyer. 

9. INFRINGEMENT:  Seller agrees to indemnify, defend and hold harmless Buyer and Buyer’s successors, assigns, affiliates, directors, officers, managers, members, employees, customers and agents against all loss, damages, expense (including attorneys’ fees and costs), liability, claims, demands and actions, for actual or alleged infringement of any letters patent, trademarks, or other property rights, resulting from the sale or use of any goods related to this order, except those which have been specifically designed by Buyer.

10. INDEMNIFICATION:  Seller agrees to indemnify, defend and hold harmless Buyer and Buyer’s successors, assigns, affiliates, directors, officers, managers, members, employees and agents from and against any and all loss, damage, liability, cost or expense of whatever nature or cause (including attorneys’ fees and costs) arising out of any act or omission of Seller or employees, contractors or agents of Seller or arising out of defects in the design, manufacture or other attributes of goods supplied under this order, EVEN IF BUYER’S NEGLIGENCE IS DETERMINED TO HAVE CONTRIBUTED TO THE LOSSES OR DAMAGES INCURRED.  The foregoing includes, without limitation, injury or damage to the person or property of Buyer, Seller or any third party, and their respective employees, agents, and independent contractors. It is the intention of the parties that no risk or liability is or shall be incurred by Buyer in issuing this purchase order.  IN NO EVENT SHALL BUYER BE LIABLE TO SELLER FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR CONTINGENT DAMAGES OF ANY KIND, WHETHER ARISING OUT OF (A) THIRD PARTY CLAIMS AGAINST SELLER, OR (B) BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORIES OF LAW WITH RESPECT TO ANY UNDERTAKINGS, ACTS, OR OMISSIONS RELATING, DIRECTLY OR INDIRECTLY, TO THIS ORDER.
Notwithstanding the Seller’s obligations set forth in this Section 10, if the purchase order services are deemed a "construction contract” or "motor carrier transportation contract,” as each term is defined in La. R.S. 9:2780.1, then , with respect to performance in Louisiana, Seller’s obligations under this Section 10 are modified to exclude any obligation to defend, indemnify or hold harmless Buyer for claims or actions based upon, or arising out of, injuries, including death, to persons, or damage to or destruction of property, sustained or alleged to have been sustained, to the extent (for that portion) resulting from the negligence, gross negligence or intentional misconduct of Buyer or of other contractors and suppliers and their employees, agents and subcontractors / sub-suppliers who are not employees, agents or subcontractors / sub-suppliers retained or engaged by Seller or Seller’s sub-suppliers.  Except for the foregoing modification, in all other respects Seller’s obligations under this Section 10 shall continue in full force and effect.

11. ASSIGNMENT:  Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this order without the prior written consent of Buyer and any purported assignment or delegation in violation of this section shall be null and void. No assignment or delegation shall relieve Seller of any of its obligations hereunder.

12. APPLICABLE LAWS:  All orders, sales and these terms and conditions shall be governed by the laws of the State of Texas, excluding conflict of law provisions.  The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.  All laws and regulations required to be incorporated in agreements of this character are incorporated herein by this reference.  Seller warrants that (a) all goods and services supplied pursuant to any purchase order will comply with the requirements of all applicable federal, state and local statutes, rules, regulations and orders, including without limitation, and including the underlying rules, regulations and orders, the Fair Labor Standards Act of 1938 as amended, the Occupational Health and Safety Act, the Arms Export Control Act, the Export Administration Act and all equal opportunity and civil rights laws, (b) Seller is not (i) a person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, U.S. Department of Treasury ("OFAC Listed Person”) or (ii) a department, agency or instrumentality of, or is otherwise controlled by or acting on behalf of, directly or indirectly, any OFAC Listed Person or the government of a country subject to comprehensive U.S. economic sanctions administered by OFAC, (c) any material contained in goods that are the subject of this order shall not originate or transfer from a country subject to comprehensive U.S. economic sanctions administered by OFAC, and (d) all material subject to this order shall be shipped in accordance with the provisions of the Hazardous Materials Transportation Act of 1975.  This order hereby incorporates the provisions of Executive Order 11246, as amended on Equal Opportunity, the Rehabilitation Act of 1973, and Section 402 of the Vietnam Era Veterans Readjustment Act of 1974.  Seller shall provide any necessary documents, at Buyer’s request, to prove and give evidence of compliance with any applicable law.  Seller shall indemnify, defend and hold harmless Buyer and Buyer’s successors, assigns, officers, employees and agents from and against any and all loss, damage, liability, cost or expense (including attorneys’ fees and costs) resulting from Seller’s violation of the provisions of any applicable law.

13. CONFIDENTIAL INFORMATION:  Seller agrees to keep confidential all information relative to any purchase order and will not use Buyer’s name in any advertising.  Seller agrees that drawings and prints or other such information furnished by Buyer are not to be reproduced or otherwise copied and are not to be used for any purpose other than that for which they are specifically furnished.  Buyer shall have the right to use any drawings delivered with the goods, including for future transactions and solicitations, and Seller herby grants to Buyer a license for such purpose.

14. EXPEDITING:  Seller shall furnish by telephone or as directed by Buyer, every fourteen (14) days, or as required by Buyer, status of engineering, material procurement, production and shipping information.  Buyer reserves the right to contact Seller’s suppliers to determine the status of the work being performed by the supplier.  Upon notice to Seller, Buyer shall be granted access to any and all parts of the Seller’s plant(s) or Seller’s supplier’s plant(s) engaged in the manufacture or processing under any purchase order to review progress of the work and expedite same.  Seller shall ensure that this requirement becomes a part of Seller’s purchase orders to its suppliers.  Upon request, Seller shall furnish to Buyer unpriced copies of Seller’s purchase orders to its suppliers for major material/equipment.

WHEN A PURCHASE ORDER COVERS THE SUPPLYING OF LABOR OR LABOR AND MATERIALS ON BUYER’S PREMISES, IT IS ALSO SUBJECT TO THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS, PARAGRAPHS 15 through 21.  

15. INSPECTION OF SITE: Seller before starting work shall make a thorough inspection of the work site and its surroundings in order to be thoroughly familiar with all conditions relative to the services.  At the time of such inspection Seller shall schedule to meet with Buyer’s representatives to review Buyer’s safety rules.

16. INDEPENDENT CONTRACTOR:  Seller shall act as an independent contractor and not as an agent or employee of Buyer.  Seller shall be solely responsible for all materials and work.  Seller shall not have the authority to bind Buyer to any obligation without Buyer’s written consent.

17. INSURANCE:  Seller shall at his sole cost and expense, and before commencement of the work described herein, cause to be issued and shall thereafter maintain, during the entire progress of the work, minimum insurance coverages as set forth below, except as otherwise agreed to in writing:

(a) Workmen’s Compensation – in accordance with the provisions of the applicable workmen’s compensation law or similar laws of the nation, state, territory or province having jurisdiction over the employees.

(b) Comprehensive General Liability – including products and contractual liability, subject to a combined single limit of liability of $5,000,000.00 per occurrence for bodily injury and property damage. 
 
(c) Automobile Liability – covering use of all owned, nonowned and hired vehicles subject to a limit of liability of $5,000,000.00 per occurrence for bodily injury and property damage.

(d) Such other insurance – as Buyer may deem necessary to cover the work as expressly set forth elsewhere in this purchase order.  

Before performing any work for Buyer or entering into any of Buyer’s facilities, Seller must supply Buyer with current Certificates of Insurance evidencing that the above insurance is in force and that thirty (30) days written notice will be given Buyer prior to any cancellation or restrictive modification of policies.  Seller will request its insurance agent to update Buyer with current insurance certificates when Seller’s coverage changes or is renewed.

Buyer shall be named as an additional insured under each policy of insurance evidencing the above described coverages.  Subrogation against Buyer under all of Seller’s insurance for claims of losses arising out of Seller’s performance of this purchase order shall be and is hereby waived by Seller. Evidence of such waiver shall be exhibited in the above mentioned Certificates of Insurance although failure to so reflect such waiver shall not alter such waiver.

Failure to secure the insurance coverages or failure to comply fully with any of the insurance provisions of this Section 17 and all purchase orders and other written authorizations, or failure to secure such endorsements on the policies as may be necessary to carry out the terms and provisions of this agreement and all purchase orders and other written authorizations, shall in no way act to relieve Seller from the obligations of this agreement and any purchase order and other written authorization, anything herein to the contrary notwithstanding.  The insurance requirements hereunder are in addition to and do not replace or defeat the other obligations of the agreement, including but not limited to those obligations set forth in Section 10, Indemnification, of this agreement.

18. MECHANIC’S LIENS:  Seller agrees to indemnify and hold harmless Buyer from and against all laborers’, materialmen’s and/or mechanics’ liens arising from the performance of Seller’s work or that of any agent, subcontractor or supplier of Seller, and shall keep the premises of Buyer free from all such claims, liens and encumbrances.  Seller waives all rights of laborers’, materialmen’s and mechanics’ liens against the property and premises of Buyer. 
 
19. PERMITS:  Except as set forth in this purchase order, Seller shall procure at Seller’s sole cost all necessary permits, certificates, and licenses required by all applicable laws, regulations, ordinances and rules of the nation, state, municipality or political subdivision where the work is performed, or required by any other duly constituted public authority having jurisdiction over the work of Seller, and further agrees to hold Buyer harmless from and against all liability and loss incurred by reason of an asserted or established violation of such laws, regulations, ordinances, rules, or requirements.

20. ENVIRONMENTAL, SAFETY AND HEALTH REGULATIONS:  While on the premises of Buyer, Seller, its employees, subcontractors and agents shall comply with all statutory and governmental environmental, safety and health laws and regulations and with the environmental, safety, health and facility regulations of Buyer, and shall ensure that all of its employees, subcontractors and agents have a safe place of work on the premises of Buyer.  Seller shall keep said premises and the vicinity thereof clean of debris and rubbish caused by its work and, upon completion of its work, shall leave the premises clean and ready for use.  Upon request of Buyer, and at no cost or expense to Buyer, Seller shall promptly remove from the premises of Buyer any person under the control of Supplier who violates any of the aforesaid environmental, safety, health, or facility regulations, or who may cause or threaten to cause a breach of the peace. 
 
21. STATUTORY EMPLOYEES:  With respect to performance in Louisiana, Seller recognizes and agrees that a statutory employer relationship as envisioned by La. R.S. 23:1061(A), as amended by act 315 of 1997, exists between the Seller and Buyer with respect to the services and work to be provided by Seller for Buyer, as to Seller’s direct employees and its statutory employees; and that the services and work to be performed are an integral part of, or essential to, the ability of Buyer to generate its own goods, products and/or services.


 

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