TERMS AND CONDITIONS OF BUSINESS
1. Buyer may purchase equipment offered in this quotation only on the Seller’s terms and conditions included in this quotation. Buyer may choose to issue a purchase order to identify equipment for purchase and for its own internal purchases. However, unless accepted in writing by an authorized employee of Tri-Energy Oilfield Services (TEOS), any terms and conditions contained in any purchase order, acceptance, acknowledgment, or other document Buyer submits to Tri-Energy Oilfield Services which are inconsistent with, different from, or additional to, the terms and conditions of this quotation will be null and void, and in lieu thereof the terms and conditions of this quotation shall control.
2. PRICES AND PAYMENT: Payments are to be made in Canadian funds. Unless otherwise specified, all invoices are due net 30 days from date of shipment. PRICES INVOICED WILL BE THOSE IN EFFECT AT TIME OF SHIPMENT. All prices are f.o.b. point of shipment. Seller reserves the right to place a service charge on past due accounts at the highest rate permitted by law.
3. WARRANTY:
A. Tri-Energy Oilfield Services STANDARD WARRANTY FOR NEW GOODS AND SERVICES Tri-Energy Oilfield Services warrants that the goods delivered under this contract will be free from defect in material and workmanship for a period of eighteen (18) months from the date of shipment or twelve (12) months from the date of installation, whichever is earlier. The sole remedy of Company for a breach of this warranty is the repair or replacement (at Tri-Energy Oilfield Services ‘s option) of the defective good; and Tri-Energy Oilfield Services will not be liable under this warranty for labor or other expenses to remove or reinstall the good; for transportation or freight on the good or any replacement good; for rig time or other heavy lift operations; for down time; or for any other costs. Goods which Tri-Energy Oilfield Services determines to have been subjected to abuse or other improper use will not be entitled to the benefits of any warranty by Tri-Energy Oilfield Services. Tri-Energy Oilfield Services further warrants that all services performed hereunder will be performed by competent workers in accordance with generally accepted industry standards and will conform to all applicable laws and regulations. Tri-Energy Oilfield Services warrants the services performed for a period of twelve (12) months from the date performed. The sole remedy of Company for a breach of this warranty shall be the re-performance of the services at no additional cost to Company.
B. Tri-Energy Oilfield Services STANDARD WARRANTY FOR REMANUFACTURED GOODS Tri-Energy Oilfield Services warrants all such remanufactured goods for a period of nine (9) months from date of shipment or six (6) months from the date of installation, whichever is earlier. The sole remedy of Company for a breach of this warranty is the repair or replacement (at Tri-Energy Oilfield Services’s option) of the defective good; and Tri-Energy Oilfield Services will not be liable under this warranty for labor or other expenses to remove or reinstall the good; for transportation or freight on the good or any replacement good; for rig time or other heavy lift operations; for down time; or for any other costs. Goods which Tri-Energy Oilfield Services determines to have been subjected to abuse or other improper use will not be entitled to the benefits of any warranty by TEOS.
C. The warranty shall not apply to any equipment which has been subject to misuse, neglect, or accident, or has been altered or tampered with, or on which corrective work has been done without Seller’s specific written consent. Seller does not recommend and will not assume any responsibility for rebuilding, repairing, special plating, coating, welding, or heat treating done outside Seller’s plant by or at the request of Buyer. Products not of Seller’s manufacture and included in Seller’s proposal, and special plating, coatings, or heat treatment applied to Seller’s products are not warranted in any way by Seller but carry only the manufacturer’s warranty, if any.
THERE ARE NO OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH EXTEND BEYOND THE FACE OF THIS CONTRACT.
4. LIMITATION OF REMEDY AND LIABILITY: Seller’s liability, including that for breach of contract, negligence, strict liability in tort, or otherwise, for its products and Buyer’s exclusive remedy is limited to (a) the repbut or replacement (not installation) of parts found defective by us f.o.b. Seller’s factory if returned to the factory for inspection, transportation charges paid, or (b) if in Seller’s opinion repair or replacement will not remedy a claimed product deficiency, or if a product of Seller’s manufacture does not comply with the description or specification set forth on Seller’s Order Acknowledgment to repayment of any amounts paid on the purchase price, cancellation of the order and acceptance of the product f.o.b. point of manufacture. However, if the product has been in use for a period in excess of 30 days, Seller reserves the right to make a reasonable depreciation charge for such use.
5. DISCLAIMER: SELLER EXPRESSLY DISCLAIMS ANY OBLIGATION OR LIABILITY FOR LABOR PERFORMED IN CONNECTION WITH INSTALLATION OR REPAIREOR REPLACED PARTS OR FOR ANY OTHER EXPENSE, INJURY, LOSS OR DAMAGE TO PERSONS (INCLUDING DEATH) OR TO PROPERTY OR THINGS OF WHATSOEVER KIND OR NATURE, WHETHER DIRECT, INCIDENTAL OR CONSEQUENTIAL, INCLUDING BUT NOT LIMITED TO THOSE ARISING FROM LOSS OF PROFITS, PRODUCTION, INCREASED COST OF OPERATION, OR SPOILAGE OF MATERIAL ARISING IN CONNECTION WITH THE SALE OR USE OF, OR INABILITY TO USE, SELLER’S EQUIPMENT OR PRODUCTS FOR ANY PURPOSE, EXCEPT AS HEREIN PROVIDED .
6. CONTINGENCIES: Seller shall not be liable to Buyer for any loss or damage suffered by Buyer, directly or indirectly, as a result of Seller’s failure to deliver or delay in delivering the equipment or failure to perform, or delay in performing, any other term or condition hereof, where such failure or delay is caused by fire, flood, natural disaster, labor trouble (including without limitation strike, slowdown and lockout), war, riot, civil disaster, embargo, government regulations or restrictions of any and all kinds, expropriation of plant by federal or state authority, interruption of or delay in transportation, power failure, inability to obtain materials and supplies, accident, explosion, act of God, or other causes of like or different character beyond Seller’s control and the time for delivery specified herein shall be extended during the continuance of such conditions and for a reasonable time thereafter.
7. RISK OF LOSS: The risk of loss or destruction of, or damages to, the products shall be on Buyer from the delivery of the product to Buyer or carrier, whichever first occurs.
8. TAXES: Buyer shall pay the amount of any Federal, State, County or Municipal sales, use, compensating, intangibles, gross income or like tax applicable to this transaction which is now in effect or may hereafter become effective, but not including taxes payable upon Seller’s net income.
9. RETURNS: No material will be accepted for credit when returned without written permission from Seller’s home office. All material accepted for credit is subject to Seller’s normal restocking charge. No material will be accepted for credit after one year from date of shipment.
10. SPECIAL PRODUCTS: Products incorporating customer requested variations from standard catalog items are considered Special Products and will be invoiced to the customer even if such items are not used. A Special Products notation will be listed within the quotation identifying that these items are present. Special Products will be invoiced to the customer upon manufacturing completion of the item per the quotation.
11. PATENTED PROCESS: The purchase of the product does not entitle Buyer to employ the same without any patented process owned by Seller or others except where Buyer is expressly authorized to use such process.
12. PATENT INFRINGEMENT: Except in the case of articles, materials and designs furnished or specified by Buyer, Seller, at its own expense, shall defend any suit brought against Buyer on the ground that use of the product for the intended purpose or purposes, as furnished by Seller, infringes any United States patent in effect on the purchase date, and shall pay the amount of any judgment that may be awarded against Buyer in any suit provided and upon condition that Buyer shall have made all payments due under this Agreement and shall (a) promptly deliver to Seller all infringement notices and other papers received by or served upon Buyer, (b) permit Seller to take complete charge of the defense of such suit and compromise the same, if deemed advisable by Seller, and (c) assist in every reasonable way in the conduct of such defense.
In the event that Buyer shall be enjoined by a court of competent jurisdiction, from which no appeal can be taken, from selling or using the product for the intended purpose or purposes on the ground that such sale or use of the product infringes any such United States patent, or it is established to Seller’s satisfaction, upon due investigation, that sale or use of the product infringes any such United States patent, Seller, at its option, may either (a) procure for Buyer a license to sell and/or use the product , (b) modify the product so as to make it noninfringing without seriously impairing its performance, (c) replace the product with a product that is substantially equal but noninfringing , or (d) accept the return of the product from Buyer, in which event Seller shall refund to Buyer the purchase price less depreciation at the rate of 15 per cent per year (measured from the date Seller shipped the product). The foregoing sets forth Seller’s entire liability to Buyer for patent infringement based on the possession, use or sale of the product by Buyer, it being understood and agreed that the aforesaid obligations of Seller do not extend to, and are not applicable in the case of, any patent infringement claims directed to a method or a process. Buyer agrees to defend and indemnify Seller against any claims or liabilities for, or by reason of, any alleged patent infringement arising from the manufacture or sale of all or any part of the product which is manufactured in accordance with the specifications furnished by Buyer.
13. TITLE: Title to the products supplied hereunder, and to any and all accessories thereto and substitutions thereof, shall remain in Seller as a security interest until Buyer has completed payment of the purchase price, plus accrued interest, if any, and fully performed all of the terms and conditions hereof.
14. INDEMNIFICATION: It is understood that Seller has relied upon data furnished by and on behalf of Buyer with respect to the safety aspects of the products supplied hereunder and/or representations by or on behalf of Buyer that such products will not be applied or used by Buyer or its customers in such a way as to detract materially from their safety in use, including, without limitation, in the manufacture of a product of which our products will be a component and that it is Buyer’s responsibility to assure that such products, when installed and put in use, will be in compliance with safety requirements fixed by applicable law and will be otherwise legally adequate to safeguard against injuries to persons or property.
BUYER HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND SELLER, AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS AGAINST ANY AND ALL LOSSES, COST, DAMAGES, CLAIMS, LIABILITIES OR EXPENSES, INCLUDING, BUT NOT LIMITED TO , REASONABLE ATTORNEYS’ FEES ARISING OUT OF OR RESULTING FROM ANY INJURY TO ANY PERSON OR DAMAGE TO ANY PROPERTY CAUSED BY THE INADEQUACY FOR THE BUYER’S INTENDED USE OF THE SAFETY FEATURES, DEVICES OR CHARACTERISTICS OF THE PRODUCTS SPECIFIED HEREIN, OR IN THE INSTALLATION, USE OR OPERATION OF SUCH PRODUCTS, EXCEPT CLAIMS SOLELY FOR REPAIR OR REPLACEMENT OF DEFECTIVE
PARTS COVERED BY THE WARRANTY SET FORTH IN PARAGRAPH 2 HEREOF.
15. No effect shall be given to any provision in any acceptance or purchase form of Buyer which is in conflict with or in addition to the terms hereof.
16. ADDITIONAL PURCHASES: If substitute or additional equipment, or repair parts, are purchased by Buyer from Seller, the terms and conditions of this contract shall be applicable thereto, the same as if such substitute or additional equipment or repair parts had been originally purchased hereunder.
17. TERMINATION BY SELLER: Seller reserves the right to terminate this agreement if, in Seller’s sole opinion, government controls do not permit Seller to maintain a remunerative price-cost relationship.
18. GOVERNING LAW: This purchase shall be governed by and interpreted in accordance with the laws of the State of Texas, without regard to its conflicts of laws rules. In the event of any dispute, or difference arising out of, or relating to this purchase, or the breach thereof, the parties shall use their best endeavors to settle such dispute, or difference by consulting and negotiating with each other, in good faith, and understanding of their mutual interests, to reach a just and equitable resolution which is satisfactory to the parties. In the event the parties cannot resolve such dispute, the parties shall be free to settle the dispute in accordance with the laws of the state of Texas. Any court proceeding shall be brought before the state or federal courts of Houston, Texas.
19. ASSIGNMENT: This sale shall inure to the benefit of and bind any successor in interest to a party to this sale. Either Party may assign its rights or obligations to a wholly owned subsidiary or affiliate upon giving written and timely notice to the other Party. Buyer may not assign this invoice to a third party without the prior written consent of Tri-Energy Oilfield Services. Tri-Energy Oilfield Services may assign this invoice to a third party upon notice to Buyer.
20. TEOS reserves the right to change Part Numbers as long as the requirements defined within the part number supplied fulfill the quote requirements and are equal to or greater than those requirements stated on the quote.