WSI Wellhead Systems Inc. The Global Wellhead Systems Authority(TM)

Wellhead Systems Inc. Terms and Conditions of Sale

DEFINITIONS:

For purposes of this document, the following terms shall have the meaning stated as follows:

  1. “WSI”: WSI Holdings d/b/a Wellhead Systems, Inc., its subsidiaries, divisions and other affiliates.
  2. “WSI Group”: WSI, its subsidiaries, divisions and other affiliates and their respective officers, directors, employees and agents, individually and collectively.
  3. “Equipment”: All equipment, tools, products, materials and supplies and/or merchandise rented or sold by WSI and/or provided in connection with services performed by WSI.
  4. “Services”: All services furnished by WSI, including services of employees and equipment, tools, trucks and/or other merchandise necessary to perform any such employee’s job.
  5. “Customer”: Party ordering and/or on whose behalf Equipment and/or Services are ordered and/or received from or furnished, rented or sold by WSI.
  6. “Claims”: All liabilities, losses, claims, fines, penalties, demands, causes of action, proceedings, damages and penalties, including attorney’s fees and court costs and expenses.

TERMS AND CONDITIONS:

Equipment ordered by Customer shall be sold by WSI only on the following terms and conditions of sale (“Sales Terms”). Equipment and Services furnished to Customer by WSI shall be furnished only on the following terms and conditions of Service (“Service Terms”). The Sales Terms and Service Terms shall be referred to herein, individually and collectively, as the “Terms and Conditions”. The following provisions are included in each of the applicable Terms and Conditions:

  1. General: These Terms and Conditions constitute the entire contract (the "Contract") between the parties and may not be amended except in writing by WSI’s authorized representative. Each shipment received by, and Services furnished to, Customer will be only on these Terms and Conditions, notwithstanding different or additional terms and conditions contained on any of Customer’s forms, which are hereby objected to and which will not be binding on WSI. The failure of either party to enforce any provision hereof will not constitute a waiver or preclude subsequent enforcement thereof. No partial invalidity of this agreement will affect the remainder. The laws of the State of Texas shall govern the validity, construction, interpretation, and effect of these Terms and Conditions, excluding any choice of law rules which would otherwise require the application of laws of any other jurisdiction, and specifically including any applicable laws governing sanctions or the control of exports. Any dispute related to this Contract that cannot be resolved by negotiation between Customer and WSI shall be settled by binding arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as amended by this Contract. The arbitration shall take place in Houston, Texas, USA. The parties agree that this provision, the arbitrator’s authority to grant relief, and all post-arbitration proceedings shall be subject to the provisions of this document, the governing law specified herein, the United States Arbitration Act, 9 U.S.C. et seq., and the ABA-AAA Code of Ethics of Arbitrators in Commercial Disputes. The arbitrator shall have no power or authority to make awards or issue orders of any kind except as expressly permitted by this document and the substantive law referenced above, and in no event shall the arbitrator have the authority to make any award that provides for punitive or exemplary damages or attorneys’ fees.
  2. Credit: Any agreement between WSI and Customer is subject to Customer establishing and maintaining credit satisfactory to WSI. WSI reserves the right to approve or reject the credit of any Customer and to establish credit terms for each Customer. WSI can terminate this Contract or modify credit terms at any time prior to delivery of Equipment or furnishing of Equipment or Service personnel without liability if WSI’s assessment of Customer’s financial condition changes. WSI reserves the right, prior to making any shipment of Equipment or furnishing of Equipment or Service personnel, to require that Customer furnish security for performance of Customer’s obligations. Standard payment terms are net 30 days, except as provided elsewhere herein. All payments, unless otherwise specified, shall be made in U.S. Dollars to the address specified on the invoice without any deductions or setoffs. All currency exchange rate changes, duties, taxes, etc., not specifically included on the face of the quotation and/or invoice shall be paid by Customer. If credit terms are not met, in addition to its other legal rights, WSI may (i) defer or cancel, at its option, further shipments of Equipment or Service personnel and (ii) charge Customer interest at the maximum rate permitted by applicable law on the unpaid balance due. Customer will pay all of WSI’s costs, including attorney’s fees and court costs, incurred in connection with the collection of past due amounts from Customer.
  3. NO CONSEQUENTIAL DAMAGES: WSI WILL NOT BE RESPONSIBLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHICH SHALL INCLUDE BUT NOT BE LIMITED TO, LOSS OF REVENUE, PROFITS OR ANTICIPATED PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF PRODUCTION, DAMAGES FOR FAILURE TO MEET DEADLINES, LOSS OF USE, RIG TIME EXPENSES, WELL CONTROL EXPENSES, SUBSURFACE DAMAGE, LOSS OF HOLE, RE-DRILLING EXPENSES, RESERVOIR OR FORMATION DAMAGE, POLLUTION DAMAGE AND/OR WRECK OR DEBRIS REMOVAL EXPENSE ("CONSEQUENTIAL DAMAGES").
  4. Force Majeure: WSI will not be liable for any damages, including special and Consequential Damages, caused by events of force majeure or any other occurrences beyond WSI’s reasonable control. In the event of any such occurrence, the time for performance will be extended automatically for such reasonable time as is necessary to permit performance hereof.
  5. DISCLAIMER OF WARRANTIES/SERVICES AND TECHNICAL INFORMATION: ANY ASSISTANCE IN EQUIPMENT INSTALLATION OR TECHNICAL OR ENGINEERING INFORMATION CONCERNING EQUIPMENT OR SERVICES PROVIDED BY WSI WILL BE ADVISORY ONLY, AT CUSTOMER’S SOLE COST AND ON AN "AS IS" BASIS. NO WARRANTY IS GIVEN WITH RESPECT TO SUCH SERVICES OR INFORMATION AND WSI WILL NOT BE LIABLE FOR ANY CLAIMS ARISING FROM ITS FURNISHING OR CUSTOMER’S USE OF SUCH ASSISTANCE OR INFORMATION.
  6. Availability: Customer agrees that, although a price is listed in any Price List, the Equipment listed may or may not be available in all and/or any of WSI’s locations.
  7. Insurance: The parties agree that the indemnities provided by Customer herein shall be supported either by available insurance or be voluntarily self-insured, in whole or part. Customer will, at its expense, maintain a policy of insurance with limits of at least US$500,000 insuring Customer’s obligations herein, which policies shall be primary and name WSI as additional insured. Customer shall provide WSI with a current certificate of insurance as evidence of such insurance policy
  8. Taxes: All prices and day rates quoted are net of customs fees, duties, and all taxes (including, sales, use, excise or similar taxes and foreign withholding taxes) and Customer shall be responsible for all such amounts.
  9. Acceptance: Customer acknowledges and represents that it has reviewed these terms, conditions and the prices in the applicable Price List, including any additional terms and conditions concerning specific Equipment and/or Services where applicable and Customer shall keep itself apprised of all revisions, changes and/or amendments thereto.
  10. Assignment: Customer may not assign any rights or obligations hereunder, without WSI’s written consent.
  11. Amendment of Indemnities to Conform to Law: The indemnities provided by Customer herein shall be limited to the extent necessary for compliance with the laws of the applicable jurisdiction, and to the extent any laws are at variance with the indemnities provided herein, such indemnities shall be deemed to be amended so as to comply with such laws.
  12. Termination/Survival: No termination shall relieve Customer of any liability incurred hereunder and the obligations of Customer hereunder shall continue and survive such termination, including all indemnities contained herein which are made expressly for the benefit of WSI Group.
  13. Acceptance of Terms and Conditions by Customer:
    1. In the event of a conflict between these Terms and Conditions and the provisions of any of Customer’s printed or other prepared form of purchase orders, work or service orders, job or delivery tickets, or other similar forms, the provisions of these Terms and Conditions shall govern and control.
    2. Customer agrees to the Terms and Conditions contained herein, unless Customer specifically objects to WSI in writing, to those specific Terms and Conditions which are not acceptable,
      1. no later than 7 days after sales confirmation date or invoice date, whichever is earlier, or
      2. prior to the time WSI, as per Customer’s request, dispatches Equipment or Service personnel to Customer, whichever is earlier.
    Any conflict between these Terms and Conditions and the provisions of any of Customer’s work or service orders, job or delivery tickets, or any other similar forms, shall not constitute an objection in writing by Customer. These Terms and Conditions shall not be altered, changed or modified, except as specifically provided herein or by the written agreement of Customer and WSI, signed by a duly authorized officer or representative of WSI.
  14. Existing Agreements: In the event that Customer and the applicable WSI entity supplying the goods and services have entered into a current Master Service Agreement (MSA) the terms and conditions of the MSA shall control.
  15. Registrations: Customer hereby authorizes WSI to sign on Customer’s behalf any financing statements, financing change statements or similar documents necessary to perfect any security interest or lien created in WSI’s favor in this Contract. Customer hereby waives its right to receive copies of any such statements or documents.
  16. Confidentiality: Customer shall strictly maintain the confidentiality of all confidential information concerning WSI, Equipment or Services, which is acquired by or disclosed to Customer. Customer shall not acquire any title, interest or rights in such confidential information pursuant to this Contract.

SALES TERMS

  1. LIMITED WARRANTY/DISCLAIMER:
    1. Provided that Customer subjects Equipment only to operating conditions specified by Customer when the order is placed, if any, and operates it in accordance with WSI’s written operating instructions, if any, WSI warrants Equipment sold pursuant hereto to be free of defects in material and workmanship for a period of 1 year after the date Equipment is delivered. The above warranty does not apply to:
      1. used Equipment or Equipment that has been repaired or worked over;
      2. Equipment that has been modified or subjected to improper handling, storage, installation, operation or maintenance by Customer, including use of unauthorized replacement parts;
      3. component parts not manufactured by WSI, whether purchased by WSI or furnished by Customer, such parts being subject to any applicable manufacturer’s warranty;
      4. parts requiring replacement because of normal wear and tear;
      5. design on those jobs where WSI prepared drawings, lists or bills of material from designs furnished by others; and
      6. models or samples furnished to Customer as illustrations only of general properties of equipment. This warranty will not apply if Customer, on request by WSI, does not return the defective part to WSI for inspection, freight prepaid.
    2. WSI’ liability for breach of this warranty is expressly limited to the repair or replacement, at its sole option, of any Equipment or parts of Equipment which prove to be defective during the warranty period. All parts repaired or replaced hereunder shall be repaired or replaced F.O.B. WSI's Plant (i.e. location from which Equipment is shipped.)
    3. WSI'S OBLIGATION TO REPAIR OR REPLACE CONSTITUTES AGREED AND LIQUIDATED DAMAGES FOR ANY BREACH OF WSI'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 WSI'S NEGLIGENCE OR FAULT. WSI WILL NOT BE RESPONSIBLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND.
    4. Notice of defective products or services must be given in writing to WSI by the Customer. Customer or user of the products must keep the products in unaltered condition for examination by WSI 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.
    Notwithstanding the preceding, used parts and assemblies – unless rebuilt by WSI and specifically stated otherwise on the quotation or invoice, will carry no warranty. Warranties will not apply and be void if the product or Service has been subjected to or suffered misuse, negligence, abuse, neglect, accident, or has not been installed or operated or repaired in accordance with applicable published instructions or has been installed in or operated under more severe conditions than those specified for the particular product or Service or has been altered so as to affect its ability or reliability (except where such alteration has been accomplished with the prior written consent of WSI). Products sold by WSI, but manufactured by another company, will carry only the warranty of the manufacturer, and Customer will rely solely on that warranty. The liability of WSI for any loss or damage resulting to Customer or user or any third party from any defect in any product or Service will not, in any case, exceed the selling price which WSI received from Customer for that product or Service. WSI does not warrant that any of the products sold by it, if used or sold in combination with other equipment or used in the practice of methods or processes, will not, by virtue of such combination or use, infringe patents of others and WSI shall not be liable for any patent infringement arising from, or by reason of, any use or sale of any materials, Equipment or products not of WSI’s manufacture or for the use or sale of any materials, Equipment or products or other goods specially made, in whole or in part, to Customer’s design specifications.
  2. Return Policy: Products purchased from WSI may be returned for credit provided the returned item is unused, in new condition, and considered by WSI to be a normally stocked item and WSI gives its written consent to such return at WSI’s sole discretion. A minimum restocking fee of 20% of list price plus freight will be charged for inspection and testing on all products returned for credit. No products or other material will be accepted for credit after ninety (90) days from date of purchase.
  3. Cancellation or Changes: There shall be no cancellations without WSI's written consent at WSI’s sole discretion. Any cancellation at Customer's request may result in a cancellation charge equal to (a) if standard Equipment, 20% of, and (b) if nonstandard or special Equipment, 100% of, the full Contract price for Equipment billable by WSI to Customer, before any discount. Purchase orders once placed and accepted can be changed only with WSI’s written consent. WSI reserves the right to make substitutions or design and construction modifications to Equipment or Services provided these changes do not affect the performance of those Equipment or Services.
  4. Prices:
    1. Prices for standard Equipment will be the sales price shown on WSI's current product sales price list (the "Price List"). Prices are subject to change at any time without notice.
    2. Requests for quotations for nonstandard Equipment should be sent to the appropriate WSI office. Quoted prices are valid for 30 days after the date of the quotation. Unless otherwise noted on the quotation, validity of the quotation may be extended at the sole option of WSI.
    3. Prices are EX WORKS WSI's point of manufacture or one of WSI's stocking points, depending on the location from which the Equipment is shipped.
    4. Customer will arrange for shipment of Equipment, at Customer’s risk, and pay for all crating, handling and shipping costs. If Customer requests WSI to arrange for shipment or does not furnish WSI with shipping instructions prior to the time Equipment is ready for shipment, WSI will ship Equipment to Customer in a commercially reasonable manner, at Customer's risk, and WSI may charge Customer at WSI’s cost, plus 15% or as otherwise agreed to by the parties.
    5. Prices are based on WSI's standard procedures and specifications for manufacturing and testing Equipment. Cost of additional labor, materials or outside service for modification of such procedures or specifications requested by Customer will be charged to Customer at WSI's total cost, plus 15%, including direct and indirect cost, such as engineering, labor, overhead and shop supplies.
    6. Prices do not include the cost of personnel or equipment required to install the Equipment. Upon request, WSI may provide such personnel and Equipment at its prevailing rates at the time of installation.
  5. DISCLAIMER: WSI will use reasonable efforts to have Equipment ready for shipment by the date agreed to by WSI, subject to receipt by WSI of all necessary Customer information, including approval of drawings. HOWEVER, WSI ASSUMES NO LIABILITY FOR DAMAGES INCURRED AS A RESULT OF ITS LATE DELIVERY OF EQUIPMENT, REGARDLESS OF CAUSE.
  6. Delivery, Title and Risk of Loss:
    1. Delivery, title and risk of loss will pass to Customer upon the date WSI notifies Customer the Equipment is ready for delivery to Customer or Customer’s agent or carrier. EX WORKS WSI’s Plant (i.e. location from which Equipment is shipped.) Customer shall be responsible for arranging shipping and for all shipping costs.
    2. If WSI has not received shipping instructions at the time of delivery or if Customer requests that WSI store the Equipment until further instruction, WSI shall act as a bailee of such Equipment and may charge Customer WSI’s customary storage rates. During any such bailment, Customer will maintain all-risk property insurance on Equipment, at its replacement value, and WSI will not be liable for deterioration of Equipment resulting from atmospheric conditions, acts of God, or other events not within WSI's reasonable control.
  7. CUSTOMER'S INDEMNITY OF WSI GROUP: IF WSI MANUFACTURES OR MODIFIES EQUIPMENT IN ACCORDANCE WITH CUSTOMER'S PLANS OR SPECIFICATIONS, CUSTOMER WILL DEFEND, INDEMNIFY, RELEASE AND HOLD WSI GROUP HARMLESS FROM AND AGAINST ALL CLAIMS BY CUSTOMER, OR ANY OTHER PERSON OR ENTITY, AGAINST WSI GROUP OF EVERY KIND OR CHARACTER WHATSOEVER, INCLUDING BUT NOT LIMITED TO THOSE CLAIMS ARISING IN CONNECTION WITH BODILY INJURY, DEATH OR DAMAGE TO PROPERTY ARISING OUT OF, DIRECTLY OR INDIRECTLY, OR IN ANY MANNER CONNECTED WITH SUCH EQUIPMENT, INCLUDING ALL CLAIMS RESULTING, EITHER IN WHOLE OR IN PART, FROM WSI GROUP'S ALLEGED BREACH OR BREACH OF IMPLIED OR EXPRESSED WARRANTY (EXCEPT AS SPECIFICALLY PROVIDED HEREIN), OR OF THE DOCTRINE OF STRICT LIABILITY IN TORT OF WSI GROUP OR ANY OTHER PERSON OR LEGAL ENTITY FOR WHICH WSI GROUP IN LAW WOULD OTHERWISE BE HELD LIABLE, IRRESPECTIVE OF WHETHER WSI GROUP MAY BE ALLEGED OR PROVEN TO HAVE BEEN NEGLIGENT, (INCLUDING BUT NOT LIMITED TO ACTIVE, PASSIVE, SOLE, JOINT, CONCURRENT OR COMPARATIVE) OR OTHERWISE LEGALLY LIABLE (WITH OR WITHOUT FAULT OR WHETHER STRICTLY LIABLE OR IN BREACH OF ANY WARRANTY) ANY SUCH CLAIMS, WHETHER SUCH CLAIMS ARE BASED ON THEORIES OF CONTRACT LAW, TORT LAW, OR OTHERWISE, DIRECT OR INDIRECT, INCLUDING SPECIAL AND CONSEQUENTIAL DAMAGES FOR BODILY INJURY, DEATH OR PROPERTY DAMAGE OR DESTRUCTION OR ECONOMIC LOSS (INCLUDING, BUT NOT LIMITED TO SUBSURFACE PROPERTY OR PROPERTY RIGHTS), OR ON ACCOUNT OF INFRINGEMENT OF ANY PATENT, DESIGN, COPYRIGHT, OR TRADE NAME OR MARK.
  8. Design and Construction Modification: WSI may modify the design and method of construction of any Equipment without notice and without incurring any obligation to furnish or install such modification on Equipment previously or subsequently sold.
  9. Compliance with Laws: Compliance with safety and health laws and regulations relating to the use of any Equipment or products is the sole responsibility of Customer, WSI makes no representations with respect thereto.
  10. Quotations. Unless otherwise agreed in writing by WSI, quotations furnished by WSI are not intended as and shall not be construed as constituting an offer to Customer, and any quotation of WSI is subject to, and shall not become binding upon WSI until
    1. actual receipt by WSI of Customer's written order based on all the Terms and Conditions stated herein, without qualification, within 30 days after the date hereof, and
    2. WSI's written acceptance of such order.
  11. International Sales. Unless otherwise specified in writing signed by WSI, Equipment sold from a WSI location in the USA for shipment to another country shall in addition to these Terms and Conditions, be governed by the following:
    1. all prices and terms of sale are FCA (Incoterms 2000) WSI's factory from which shipment is made;
    2. all orders hereunder are subject to WSI’s ability to obtain export licenses and other necessary papers within a reasonable period;
    3. Customer will furnish all Consular and Custom declarations and will accept and bear all responsibility for penalties resulting from errors or omissions thereon;
    4. Customer shall not export or re-export the Equipment or any goods or items which incorporate the Equipment if the export or re-export would violate the export or import laws of the United States or any other applicable jurisdiction;
    5. WSI reserves the right to require Customer to provide an irrevocable Letter of Credit with a bank in terms acceptable to WSI or an advance payment deposited into a WSI nominated account; and
    6. the United Nations Convention for the International Sale of Goods shall not apply to this agreement.

Wellhead Systems Purchase Order Terms and Conditions

The term “Purchase Order” means this purchase order. The term “Seller” shall include all suppliers of goods and services to Buyer or for Buyer’s benefit. The term “Buyer” means WSI Holdings, LLC d/b/a Wellhead Systems. The term “goods” means the materials, equipment or supplies which are the subject matter of this Purchase Order. The term “services” means labor related to goods as may be provided from time to time by Seller or its subcontractors including labor at Buyer’s or third party premises.

  1. Terms. The terms and conditions of this Purchase Order, including those on the face hereof and those set forth below and in any supplemental terms and conditions attached hereto, if any, represent the entire agreement between Seller and Buyer. Acceptance is limited to the terms and conditions of this Purchase Order, and no purported revisions of, additions to, or deletions from this Purchase Order shall be effective, whether in Seller's proposal, invoice, acknowledgment or otherwise, and no local, general or trade custom or usage, shall be deemed to effect any variation herein unless expressly agreed to in writing by an employee of Buyer that is an authorized representative of Buyer. The earlier of commencing work in fulfillment of the requirements of this Purchase Order, delivery of any goods or the furnishing of any services pursuant to this Purchase Order shall constitute acceptance by Seller of this Purchase Order subject to, and in strict accordance with, all of its terms and conditions. To the extent that terms appearing on the face of this Purchase Order are inconsistent with those set forth herein, the terms on the face shall govern. Any reference on the face of this Purchase Order to Seller's proposal shall be exclusive of any terms and conditions attached to or referred to therein.
  2. Specifications. All goods and services furnished pursuant to this Purchase Order shall strictly conform to the specifications, descriptions and warranties set forth in this Purchase Order. No change in this Purchase Order shall be made except upon written application to, and subsequent written authority of, Buyer.
  3. Time and Place of Delivery; Buyer’s Inspection; Acceptance. Time is of the essence of this Purchase Order. Delivery will be made as specified on the face of this Purchase Order. Buyer reserves the right to reject goods and to cancel all or any portion of this Purchase Order in the event of failure to deliver at the time and place specified. Buyer’s acceptance of any part of a shipment not delivered as specified herein shall not obligate Buyer to accept the remainder of that shipment or any future shipments. All goods shall be received subject to Buyer's inspection and acceptance, and subject to Buyer's right to reject and return at Seller's expense goods which fail to conform strictly to the requirements of this Purchase Order. All materials are subject to inspection and testing by Buyer at any time or place.
  4. Extension of Time of Delivery. Buyer shall not be liable to Seller for any failure of Buyer to take any delivery hereunder when due, if occasioned by any event beyond Buyer’s reasonable control, including without limitation fire, flood, earthquake, lightning or other acts of God; acts of, or compliance with the directions of, civil or military authority, including any federal, state or local agency or authority; wars; riots; insurrections; sabotage; accident; embargo; strike or other labor trouble; interruption of or delay in transportation; shortage or failure of supply of materials; equipment breakdown, or a collapse in the end user demand for the goods that are the subject of the Purchase Order. At Buyer's option, the time for delivery hereunder and the time for payment of any such delivery previously made shall be extended to the extent of the delay occasioned by any such circumstance and the deliveries so omitted shall be made during the period of such extension.
  5. Risk of Loss. Risk of loss of any goods sold hereunder shall transfer to Buyer at the time and place of delivery; provided that risk of loss prior to actual receipt of the goods by Buyer shall nonetheless remain with Seller.
  6. Shipment. Goods must be shipped by the particular route, method and carrier as stated in this Purchase Order. In the event that Seller fails to ship goods on or before any scheduled shipping date, Buyer shall have the right to specify a more rapid method of shipment than was specified originally and Seller shall bear, at no additional cost to Buyer, any increased costs occasioned thereby.
  7. Packing, Marking, and Invoicing. A packing list shall be included with each shipment. Two copies of Seller's invoices, together with original bills of lading, properly signed by carrier's representative, shall be forwarded to Buyer not later than the day after shipments are made. Individual invoices shall be issued for each separate shipment. Buyer shall not be charged for packaging, boxing, crating or cartage. All invoices, packing lists, bills of lading, and each separate package within each shipment shall clearly reference piece number, Buyer’s Purchase Order number and Seller's packing slip number. Partial shipments must be identified as such on the shipping memoranda and invoices.
  8. Payment; Waiver of Liens. Subject to the other provisions of this Purchase Order, Payment will be made following receipt and acceptance of the goods and receipt, in proper form and substance, of all documentation required by this Purchase Order. Seller shall furnish to Buyer any analysis or breakdown of the price as Buyer may reasonably request. This Purchase Order shall not be filled at prices higher than last quoted or charged by Seller, except as expressly agreed by Buyer. As a condition to any payment hereunder, Seller shall furnish to Buyer, upon request, an executed waiver of liens and claims in form reasonably satisfactory to Buyer. Seller agrees to indemnify, defend and hold harmless Buyer from and against any and all liens and encumbrances arising out of Seller's performance of this Purchase Order or rising out of any claim for payment by any laborer, subcontractor or supplier of Seller.
  9. Seller’s Warranties. Seller expressly warrants that for a period of one year after Buyer’s acceptance of the goods or services hereunder, or for such longer period as may be expressly provided in this Purchase Order, under applicable law, or by the manufacturer of such goods, all goods and services covered by this Purchase Order will.
    1. strictly conform to Seller’s specifications, samples and other written materials and descriptions, or, to the extent the goods were purchased to Buyer’s specifications and drawings as set forth or referred to in this Purchase Order, that the goods strictly conform with those specifications and drawings;
    2. be free from defects in design, material and workmanship;
    3. be of merchantable quality and suitable for the particular purposes intended, whether express or reasonably implied; and
    4. bear all warnings, labels, and markings required by applicable laws and regulations. In addition, Seller warrants that:
    5. none of the goods covered hereby, to the extent they are subject to laws prohibiting adulteration or misbranding, is adulterated or misbranded within the meaning of such laws as of the date of delivery to Buyer; (f) all goods covered hereby may be introduced into interstate commerce within the USA without violation of applicable laws and regulations;
    6. all services have been performed in a good and workmanlike manner; and
    7. all goods and services furnished or rendered pursuant to this Purchase Order have been produced, sold, delivered or rendered to Buyer in compliance with all applicable laws and regulations.
  10. Buyer’s Remedies. Buyer’s acceptance of all or any part of the goods or services provided hereunder shall not be deemed a waiver of the failure of such goods or services to conform to all of the warranties set forth in this Purchase Order. Buyer retains the right to cancel any portion of the remaining order, to reject any portion of the goods or services delivered, or to revoke acceptance as to any portion of the goods or services accepted, and return such goods to Seller and to recover the purchase price, any excess costs of cover, and damages, including manufacturing costs, costs of removal or recall, transportation and custodial expenses, injury to person or property incurred by Buyer, all in addition to Buyer's other remedies under this Purchase Order or applicable law. If Seller becomes insolvent or makes an assignment for the benefit of creditors, or files or has filed against it any petition in bankruptcy, Buyer shall have the right to cancel this Purchase Order immediately.
  11. Interchangeability. All items purchased hereunder (or parts thereof) are to be completely interchangeable with like items (or parts thereof) purchased from Seller previously by Buyer or Buyer's customer. To this end, all designs, processes or procedures used by Seller in supplying like items (or parts thereof) previously are to be used by Seller in supplying the items (or parts thereof) purchased herein. Any deviation to any of Seller's design, processes or procedures requires Buyer's prior written approval. Seller shall be liable for all of Buyer's costs associated with the discovery and retrofit of noninterchangeable items or parts thereof resulting from Seller's failure to comply with the requirements of this Article.
  12. Property of Buyer. Unless otherwise provided in this order or agreed to in writing, property of every description including but not limited to all tooling, tools, equipment and material furnished or made available to Seller, title to which is in Buyer, and any replacement thereof shall be and remain the property of Buyer. Such property other than material shall not be modified without the written consent of Buyer. Such property shall be plainly marked or otherwise adequately identified by Seller as being owned by Buyer and shall be safely stored separately and apart from Seller's property. Seller shall not use such property except for performance of work hereunder or as authorized in writing by Buyer. Such property while in Seller's possession or control shall be listed in writing and kept in good condition, shall be held at Seller's risk, and shall be kept insured by Seller, at its expense, in an amount equal to the replacement cost with loss payable to Buyer. To the extent such property is not material consumed in the performance of this order, it shall be subject to inspection and removal by Buyer and Buyer shall have the right of entry for such purposes without any additional liability whatsoever to Seller. As and when directed by Buyer, Seller shall disclose the location of such property, prepare it for shipment and ship it to Buyer in as good condition as originally received by Seller, reasonable wear and tear excepted.
  13. Special Tooling. The term "special tooling" as used in this Article shall be deemed to include all jigs, dies, fixtures, molds, patterns, special cutting tools, special gauges, special test equipment, other special equipment and manufacturing aids, and drawings and any replacements of the foregoing, acquired or manufactured or used in the performance of this order, which are of such a specialized nature that, without substantial modification or alteration, their use is limited to the production of the items or parts thereof or performance of the services of the type required by this order. The term does not include
    1. items of tooling or equipment heretofore acquired by Seller, or replacement thereof, whether or not altered or adopted for use in the performance of this order,
    2. consumable small tools,
    3. general or special machine tools or similar capital items, or
    4. tooling, title to which is in Buyer.
    Seller agrees that special tooling shall be retained and not used or reworked except for performance of work hereunder or as authorized in writing by Buyer. While in Seller's possession or control, Seller warrants that it will keep the special tooling in good condition fully covered by insurance, and will replace it when lost, destroyed, or necessary for performance of work hereunder. Upon cessation or termination of the work under this order for which the special tooling is required, Seller shall furnish Buyer a list of the items, parts, or services for the manufacture or performance of which such special tooling was used or designed and a list indicating where each item of the special tooling is located, and shall transfer title to and possession of the special tooling to Buyer for an amount equal to the unamortized cost thereof, or dispose thereof as Buyer may direct in writing. In addition, Buyer shall have the right to take possession of, including the right of entry for such purpose, any special tooling, title to which Buyer acquires hereunder, without any additional liability whatsoever to Seller.
  14. Patent, Copyrights, Trademarks. Seller warrants that the goods furnished under or used in connection with this Purchase Order (except those furnished according to Buyer's specific design) and Buyer's express or reasonably implied intended use thereof, do not and will not infringe any patent, copyright, trademark, trade secret or other proprietary right of any third party. If any claim, suit or proceeding is made or instituted against Buyer alleging any such infringement, Seller shall indemnify, defend and hold Buyer harmless from and against any damages, liabilities, judgments, costs and expenses (including without limitation reasonable attorney's fees) it may incur in connection with any such claim, suit or proceeding. In the event that the goods or Buyer's use is held in any suit or proceeding to constitute an infringement, or if Seller determines that there is a substantial risk of a finding of such infringement, Seller agrees, as appropriate, and at its expense to:
    1. procure for Buyer, at no expense to Buyer, the right to continue using the goods,
    2. replace the goods with equivalent goods that meet the requirements of this Purchase Order and that do not infringe any such rights, or
    3. modify the goods so that they become non-infringing.
  15. Indemnification. To the fullest extent permitted by law, Seller agrees to indemnify, defend, and hold harmless Buyer, its affiliates, and their respective directors, officers, employees and agents (the "Indemnified Parties") from and against all claims, demands, causes of action, losses, costs and expenses (including without limitation reasonable attorneys' fees and costs of defense) (collectively, "Losses") alleged to have resulted from or arising out of or incident to Seller's performance or nonperformance hereunder, or the presence of Seller, its employees, agents or invitees ("Seller Parties") on Buyer's premises, provided that such Losses are attributable to
    1. the negligence or willful misconduct of the Seller Parties,
    2. the failure of the Seller Parties to comply with the terms of this Purchase Order or any applicable laws, or
    3. bodily injury, sickness, disease or death (including but not limited to bodily injury, sickness, disease or death of the employees of Seller or Buyer), or to damage to or destruction of tangible property (including the loss of use thereof);
    in each case regardless of whether or not caused in part by the negligence or other fault of any Indemnified Party hereunder; provided that Seller shall not be liable for Losses caused by the sole negligence or willful misconduct of any Indemnified Party. Seller’s indemnification obligations under this Purchase Order shall not be limited by applicable Workers’ Compensation or other disability or employee benefit laws, and, solely as respects the indemnities set forth in this Section, Seller hereby expressly waives any rights it may have to assert any immunities or defenses that it may have under such laws against any Indemnified Party. In the event Buyer’s machinery or equipment is used by Seller in the performance of any work that might be required under this order, such machinery or equipment shall be considered as being under the sole custody and control of Seller during the period of such use by Seller.
  16. Intellectual Property Indemnification. Seller agrees (a) to defend, indemnify and hold harmless the Indemnified Parties against all Losses arising out of any suit, claim or action for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, copyright, mask work or other proprietary right by reason of the manufacture, use or sale of the items or services covered by this order, including infringement arising out of compliance with specifications furnished by Buyer, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Seller’s actions, (b) to waive any claim against Buyer under the Uniform Commercial Code as adopted by the states of Kansas or Texas, U.S.A. or otherwise, including any hold harmless or similar claim, in any way related to a claim asserted against Seller or Buyer for patent, trademark, copyright or mask work right infringement or the like, including claims arising out of compliance with specifications furnished by Buyer, and (c) that Buyer shall have a worldwide, nonexclusive, royalty free, irrevocable license to use, sell and have sold, repair and have repaired, and reconstruct and have reconstructed the items covered by this order. Seller assigns to Buyer all right, title and interest in and to all trademarks, copyrights, and mask work rights in any material created for Buyer in connection with this order. The obligations of this paragraph shall survive termination or completion of this order.
  17. Labor, Work and Services. In supplying any services hereunder, Seller warrants that it is, and undertakes such performance as, an independent contractor, with sole responsibility for the payment of all federal and/or state unemployment insurance, social security and/or other similar taxes incurred hereunder. Any performance by Seller under this Purchase Order on Buyer’s premises shall be in full compliance with Buyer’s safety and other rules and procedures and with all federal and state laws and regulations regarding workplace safety, including without limitation, laws pertaining to occupational safety and health.
  18. Insurance. Seller agrees to furnish evidence of insurance showing that Seller has and will maintain adequate insurance coverage during the life of this order in the opinion of Buyer, including but not limited to comprehensive general liability insurance. Such evidence of insurance must set forth the name of the insurer, policy number, expiration date, and limits of liability. Compliance by Seller with insurance requirements does not in any way affect Seller’s indemnification of Buyer under any provision of this Purchase Order.
  19. Laws and Regulations. All goods furnished or services rendered pursuant to this Purchase Order shall be produced, sold, delivered, or rendered to Buyer in compliance with all applicable laws and regulations, including without limitation, the Federal Fair Labor Standards Act of 1938, as amended, Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, Section 503 of the Rehabilitation Act of 1973, Executive Order 11246, Section 402 of the Vietnam Veterans’ Readjustment Assistance Act of 1974, the Occupational Safety and Health Act of 1970, as amended ("OSHA"), (in the event of a conflict between the requirements of OSHA and any industry codes or standards applicable to this Purchase Order, the more stringent requirement shall apply), the Noise Control Act of 1972, all applicable environmental laws and regulations, including without limitation, the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, and the standards of accessibility set forth in Section 402 of the Americans with Disabilities Act, and the rules, regulations and orders pertaining to the above.

    Seller also agrees that the following clauses from the Code of Federal Regulations shall also apply to this Purchase Order and shall be incorporated herein by reference. the Equal Employment Opportunity Clause, the Certification of Nonsegregated Facilities required by paragraph (7) of Executive Order 11246, the Utilization of Minority Business Enterprises and the Minority Business Enterprises Subcontracting program clauses, the Affirmative Action for Handicapped Worker’s clause, and the Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era clause are, by this reference, incorporated herein and made part hereof.

  20. Termination. Buyer may at any time, without cause, terminate this Purchase Order in whole or in part upon written notice to Seller. In such event, Seller shall be entitled to a reasonable termination fee consisting of a percentage of the Purchase Order price reflecting the percentage of the work, goods delivered or services properly performed prior to termination. Payment of such termination fee shall be Seller’s sole remedy. Upon Buyer’s request, Seller shall preserve, protect and deliver to Buyer, at Buyer’s expense, materials on hand, work in progress, and completed work, both in its own and in its suppliers’ plants.
  21. Assignment and Set-Off. Seller shall not assign its rights or delegate its performance hereunder, nor any interest herein, without Buyer’s prior written consent and any attempted assignment or delegation without such consent shall be void. Buyer shall be entitled at all times to set-off any amount owing from Seller to Buyer, whether under this Purchase Order or otherwise, against any amounts otherwise payable to Seller.
  22. Confidentiality, Inventions. All Information Furnished Or Made Available by Buyer to Seller or to Seller’s employees or subcontractors in connection with the items or services covered by this order shall be treated as confidential and shall not be disclosed by Seller, its employees and subcontractors to any third party either in whole or in part, without Buyer’s prior written consent. Seller agrees not to assert any claim against Buyer with respect to any information which Seller shall have disclosed or may hereafter disclose to Buyer in connection with the items or services covered by this order. Seller agrees that all designs, drawings, processes, compositions of material, specifications, software, mask works or other technical information made or furnished by Seller in connection with the items or services covered by this order, including all rights thereto, shall be the sole and exclusive property of Buyer, free from any restriction, and Seller shall protect same against unauthorized disclosure to or use by any third party. Seller agrees that, as to all inventions and improvements in such designs, drawings, processes, compositions of material, specifications, software, mask works or other technical information made or furnished by Seller in connection with the items or services covered by this order, Seller will promptly identify and disclose such inventions or improvements to Buyer and execute or obtain the execution of any papers as may be necessary to perfect ownership of the inventions or improvements in Buyer or as may be necessary in the obtainment, maintenance, or enforcement by Buyer of any patent, trademark, copyright, trade secret, mask work right or other proprietary right pertaining to the inventions or improvements. The confidentiality provisions and the obligations of this paragraph shall survive termination or completion of this order.
  23. No Waiver of Defaults. No failure by Buyer to enforce at any time any of the terms or conditions of this Purchase Order shall constitute a waiver thereof or in any way impair Buyer’s right at any time to avail itself of such remedies as it may have to enforce such terms or conditions. No waiver by Buyer hereunder will be effective unless in writing and signed by Buyer.
  24. Survival; Remedies Cumulative. All agreements and representations of Seller herein (including those regarding, confidentiality, indemnification and warranties) shall survive delivery and final payment hereunder, or any earlier termination hereof. All of the rights and remedies available to Buyer hereunder are in addition to, and not in limitation of, the rights and remedies otherwise available at law or in equity.
  25. Severability. Any provision of this Purchase Order that is unenforceable in any jurisdiction shall be ineffective to the extent of such unenforceability (but shall be enforced to the maximum extent permissible) without invalidating the remaining provisions hereof.
  26. Limitation of Liability. In no event shall Buyer be liable for any incidental, indirect, special, and consequential or punitive damages, even if Buyer knew or should have known of the possibility of such damages.
  27. Governing Law; Exclusive Venue. The Purchase Order shall be governed by the laws of the State of Kansas (excluding conflicts of law rules), and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods. Seller and Purchaser agree that venue for any litigation shall be exclusively in a court of competent jurisdiction in Graham County, Kansas, or a Federal court in the State of Kansas, and agree to submit to personal jurisdiction therein; provided, however, that the foregoing shall not be construed to limit the rights of Seller or Purchaser to enforce a judgment or order from any of these courts in another jurisdiction. SELLER IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE PURCHASE ORDER OR THE TRANSACTIONS CONTEMPLATED HEREBY
  28. Prevailing Language. This agreement shall be governed, interpreted and construed in the English language hereof, regardless of any translations that may be made into any other language.

1-866-478-2537

Proud members of Hill City Chamber of Commerce, Permian Basin Petroleum Association,
Ohio Oil & Gas Association, AWHEM, OIPA (Oklahoma), KIOGA, EKOGA and Illinois Oil & Gas Association

Representation in all major oilfield locations Distribution area includes domestic and international

Centrally located in the oilfields of Kansas to maximize shipping efficiency

P.O. Box 129, 710 West McVey, Hill City, Kansas 67642