Terms & Conditions of Sale - HES
Hunting Energy Services, Inc. Sales Order Standard Terms & Conditions
1. TERMS OF CONTRACT: These terms and conditions apply to all sales of products by Hunting Energy Services, Inc. and its affiliates. Acceptance of Buyer’s Order is expressly limited to these terms and conditions, and the quotation, if any, and order acceptance issued by Seller (the “Contract”). All orders submitted by Buyer (each an “Order”) shall be deemed to be an offer by Buyer to purchase the Products subject to these terms and conditions. Notwithstanding any oral or written statement made by Buyer, Seller’s acceptance of Buyer’s Order does not in any way constitute acceptance of Buyer’s terms and conditions, and Buyer’s terms and conditions are not a part of the Contract unless an authorized official of Seller expressly agrees in writing to accept such terms and conditions or any part thereof. The “Seller” under a Contract is the selling entity identified in the order acceptance or quotation. No Order shall be binding on Seller until accepted in writing by an authorized official of Seller. Seller is under no obligation to accept any Order. Any quotation is valid for thirty (30) days, unless otherwise indicated on the quotation. All quotations are subject to change at any time. No contract shall come into existence until Seller issues an order acceptance or delivers the Products to Buyer.
2. PRICES: All prices are subject to change without notice. Prices do not include packing and preparation for shipment, freight, loading, unloading, carriage, insurance, forwarding fees, duties of any kind or similar fees or charges applicable to the Products. Buyer agrees to pay such charges upon receipt of Seller’s invoice.
3. TAXES: Prices do not include sales, use, excise, value-added, or other similar taxes, duties, charges, or fees (or any related fines, penalties, or interest) (collectively, “Taxes”), now or thereafter enacted, applicable to the Products sold or this transaction; any such Taxes will be added by Seller to the sales price where Seller is required by law to collect the same, and will be paid by Buyer unless Buyer provides Seller with a proper tax-exemption certificate.
4. TITLE AND DELIVERY: The agreed upon delivery dates are based on the Seller's projected lead time, current inventory, commitments and supplier's advice. All shipment and delivery dates are estimates only. All shipments shall be F.O.B. Seller's facility unless otherwise specified in writing on the Order. The method and route of shipment shall be at Seller's discretion, unless Buyer supplies explicit reasonable instructions in writing at least ten (10) days prior to shipment. Buyer assumes risk of loss of the Products upon the Products departing Seller's facility, regardless of whether Seller has arranged for the transportation of the Products. Seller is not responsible for any installation of Products sold hereunder or delays caused by Buyer specified suppliers. Seller shall not be liable to Buyer for any damages, losses or expenses if Seller fails to meet the estimated delivery date. Seller may deliver the Products in installments. Claims for shortages must be made in writing within ten (10) days of Buyer’s receipt of shipment, or Buyer is deemed to have waived such claims.
5. TERMS AND METHOD OF PAYMENT: All payments shall be made within thirty (30) days of the date of Seller’s invoice. Seller may suspend credit to Buyer and may withhold shipment of Products ordered, suspend or cancel performance if, in Seller’s sole discretion, Buyer’s financial condition warrants any such action. If the Products are delivered in installments, Buyer shall pay for each installment in accordance with the terms of payment hereof. Payment shall be made for the Products without regard to whether Buyer has made or may make any inspection of the Products. If shipments are delayed by Buyer, payments are due from the date when Seller is prepared to make delivery. Products held for Buyer, shall be held at Buyer’s sole risk and expense. Products held for more than thirty (30) days may incur reasonable storage charges. All amounts due shall be paid in US Dollars directly to Seller as directed by Seller on its invoice or otherwise as specified in a written notice. Delinquent invoices are subject to a monthly service charge of the lower of 18% per annum or the maximum rate allowed by law, which shall be added to the invoice amount. Notwithstanding anything herein to the contrary, if Buyer fails to fulfill the terms of payment, Seller may defer further shipments, or may, at its option, cancel the unshipped balance. Seller reserves the right, prior to making any shipment, to require from Buyer satisfactory security for performance of Buyer’s obligations.
6. CANCELLATION OR RESCHEDULING: Buyer may request changes, including rescheduling or canceling, of all or a portion of an Order. Seller reserves the right to reject any change or cancellation to an Order or to accept such change or cancellation and assess a ten percent (10%) restocking fee.
7. CONTINGENCIES: Seller shall be excused from performance and shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond its reasonable control, including, but not limited to, war (whether an actual declaration thereof is made or not), sabotage, terrorism, insurrection, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of government or any agency or subdivision thereof affecting the terms of this Contract, prohibiting or penalizing Seller’s performance, or otherwise, judicial action, labor dispute, accident, fire, explosion, flood, storm or other natural disaster or force of nature, shortage of labor, fuel, raw material or machinery or technical or yield failure. In the event of any such delay, the date of delivery or performance shall be deferred for a period equal to the time of any such delay. If any such contingencies occur, Seller may equitably allocate production and deliveries among Seller’s customers.
8. SUBSTITUTIONS AND MODIFICATIONS OF PRODUCTS: Seller may modify the specifications of Products and substitute Products manufactured to such modified specifications for those specified herein provided such Products conform to this Contract.
9. WARRANTIES:
A. Seller, except as otherwise hereinafter provided, warrants Products manufactured by Seller when properly stored, commissioned, installed, maintained and used in conformity with the applicable product guide will conform to Seller’s specifications for a period of twelve (12) months from date of shipment (“Warranty Period”). The foregoing warranty does not apply to: (i) defects caused by or contributed to by Buyer, or abrasive materials, corrosion due to aggressive fluids, (ii) Products or parts which are normally consumed in operation or have a normal life shorter than the Warranty Period, (iii) alterations or repairs carried out without the prior written approval of Seller, (iv) use of the Product for a purpose other than that for which it was intended, (v) defects arising from or in connection with information, drawings, charts, specifications or instructions by Buyer, or (vi) experimental or developmental Products.
B. If, during the Warranty Period, Buyer in good faith believes that Products are nonconforming, Buyer shall give written notice to Seller specifying in detail the nonconformity within fifteen (15) days of receipt of such Products. If notice of nonconformity is timely given, then upon written authorization by Seller, the Products may be returned by Buyer. In order to be eligible for a credit or replacement of such Products, Buyer must return the Products to Seller, transportation charges prepaid by Buyer, within fifteen (15) days of Seller's authorization of return. If Seller determines that the Products are nonconforming, Seller, at its option, shall (i) repair the Products or otherwise replace the Products, or (ii) refund the purchase price paid by Buyer for such Products, less reasonable depreciation. Such repair, replacement or refund shall be Seller’s sole obligation and Buyer’s sole and exclusive remedy for breach of warranty hereunder for all warranted Products. If the nonconforming nature of the Product was caused by Buyer or its agents, employees or subcontractors, then Buyer shall be liable for the cost of repair or replacement and all associated costs therewith including, without limitation, transportation charges and inspection fees. In no event shall the repair or replacement of the Products therein extend the Warranty Period for such Products. Acceptance of returned Products or authorization of return of Products shall not be deemed as Seller's concession or acknowledgment of nonconformity with respect to any Products.
EXCEPT AS PROVIDED ABOVE, SELLER MAKES NO WARRANTIES, TERMS OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, ABOUT THE PRODUCTS, THE SERVICES OR THE SUITABILITY, LEGALITY OR ACCURACY OF INFORMATION, OR PRODUCTS AND SERVICES PROVIDED BY SELLER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, TERMS OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE WARRANTY EXPRESSLY MADE ABOVE IS THE ONLY WARRANTY MADE BY SELLER AND CAN BE AMENDED ONLY BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
10. INTELLECTUAL PROPERTY/INFRINGEMENT:
A. If Seller determines or believes that any Products manufactured and supplied by Seller to Buyer may be subject to any claim that it infringes any US patent, copyright, or trade secret, Seller may, at its option and at its expense, and as Buyer’s sole and exclusive remedy (i) procure for Buyer the right to use such Products free of any liability for infringement, or (ii) replace such Products with a non-infringing substitute otherwise complying substantially with the specifications, or (iii) refund the purchase price paid by Buyer for such Products, less reasonable depreciation.
B. If the infringement by Buyer is alleged prior to completion of delivery of the Products under this Contract, Seller may decline to make further shipments without being in breach of this Contract.
C. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES HERETO FOR PATENT, COPYRIGHT, OR TRADE SECRET INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.
11. LIMITATION OF LIABILITY:
A. BUYER AGREES THAT REGARDLESS OF THE CLAIM OR OTHER FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT BY BUYER AGAINST SELLER, ITS AFFILIATES OR ITS OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS OR REPRESENTATIVES (“SELLER GROUP”) THAT NEITHER SELLER OR ANY MEMBER OF THE SELLER GROUP SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, PROMOTIONAL EXPENSES, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS ARISING OUT OF OR RELATED TO THE PRODUCTS OR THIS CONTRACT, AND BUYER HEREBY WAIVES ANY CLAIM FOR ANY SUCH EXCLUDED FORM OF DAMAGES.
B. To the extent permitted by applicable law, Buyer agrees to indemnify and hold harmless all members of the Seller Group for any damages paid by the Seller Group in excess of the limitation of liability set forth in Section 11.A.
C. Buyer’s aggregate recovery from all members of the Seller Group for any claim in any way arising from or related to the Products or to this Contract shall not exceed lower of (i) the purchase price paid by Buyer for the Products at issue, less reasonable depreciation, or (ii) the amounts paid by Buyer under this Contract during the preceding twelve (12) month period; irrespective of the nature of the claim, whether in contract, tort, warranty, strict liability, product liability or otherwise and whether arising in whole or in part from the negligence of the Seller Group; provided, however, that the limitation on Buyer’s aggregate recovery under this Section 11.C shall never be less than $5,000.
D. IF AND TO THE EXTENT ANY PAYMENT REQUIRED TO BE MADE PURSUANT TO THIS AGREEMENT OR DAMAGE LIMITATION SET FORTH HEREIN IS DEEMED TO CONSTITUTE LIQUIDATED DAMAGES, THE PARTIES ACKNOWLEDGE AND AGREE THAT SUCH DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THAT SUCH PAYMENT IS INTENDED TO BE A REASONABLE ESTIMATION OF THE AMOUNT OF SUCH DAMAGES AND NOT A PENALTY.
E. BUYER ACKNOWLEDGES AND AGREES THAT THE LIABILITY LIMITATIONS SET FORTH IN THIS SECTION 11 ARE ESSENTIAL ELEMENTS OF THE CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
12. Indemnification: BUYER SHALL BE LIABLE FOR, AND SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER AND ITS AFFILIATES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (“SELLER GROUP”) FROM AND AGAINST ANY AND ALL CLAIMS WHICH ARISE OUT OF THE PERFORMANCE OF THE CONTRACT TO THE FOLLOWING: (I) LOSS OF OR DAMAGE TO ANY WELL OR HOLE OR ANY THIRD PARTY OIL AND GAS PRODUCTION FACILITIES; (II) RESERVOIR SEEPAGE OR POLLUTION ORIGINATING UNDERGROUND OR FROM THE PROPERTY OF BUYER OR ANY THIRD PARTY HOWSOEVER, (III) BLOW-OUT, FIRE, EXPLOSION, CRATERING OR ANY WELL OR RESERVOIR OR ANY OTHER UNCONTROLLED WELL CONDITION (INCLUDING THE COSTS TO CONTROL A WILD WELL AND THE REMOVAL OF DEBRIS); (IV) DAMAGE TO OR ESCAPE OF PRODUCT, OR SUBSTANCE FROM ANY FACILITY, INCLUDING ANY PIPELINE OR OTHER SUBSURFACE FACILITY; AND/OR (V) BODILY INJURY, PROPERTY DAMAGE AND ANY RELATED DAMAGES TO THIRD PARTIES. IT IS THE EXPRESS INTENTION OF BOTH BUYER AND SELLER THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY BUYER TO INDEMNIFY AND PROTECT SELLER GROUP FROM THE CONSEQUENCES OF SELLER GROUP’S OWN NEGLIGENCE, FAULT OR STRICT LIABILITY, WHETHER THAT NEGLIGENCE, FAULT OR STRICT LIABILITY IS THE SOLE, JOINT OR CONCURRING CAUSE OF A CLAIM, LOSS OR EXPENSE (BUT EXPRESSLY EXCLUDING THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER GROUP).
13. CONFIDENTIALITY: Except as otherwise provided in this Contract, Buyer agrees that any and all information associated with the Products (including but not limited to Seller’s technical data), Seller or its affiliates that is not otherwise publicly available (“Confidential Information”) that is disclosed to or received by Buyer (i) shall be treated as Seller’s confidential, proprietary, and trade secret information (with Seller reserving all rights to its Confidential Information); (ii) shall be held by Buyer in strict confidence, (iii) shall be used by Buyer only for purposes of this Contract, and (iv) that no Confidential Information, including without limitation the provisions of this Contract, shall be disclosed by Buyer without the prior written consent of Seller. Buyer shall safeguard Confidential Information with at least the same degree of care (which shall always be at least a reasonable amount of care) that it uses to safeguard its own confidential, proprietary, and trade secret information.
14. GENERAL PROVISIONS:
14.1 Notice. Notice shall be deemed effective and delivered three days after mailing if sent certified mail, return receipt requested, or when received if sent by telecopy, prepaid courier, express mail or personal delivery to the intended recipient thereof at the address shown on the first page hereof, or to such other address as either party may specify in a written notice to the other party pursuant hereto.
14.2. Independent Contractor. Seller, in providing the Products hereunder, is acting as an independent contractor and does not undertake by any Order or otherwise to perform any obligation of Buyer, or to assume any liability for Buyer’s business or operations.
14.3. Governing Law/Venue. The validity, performance, and construction of this contract shall be governed by the laws of the State of Texas (excluding its conflict of laws rules which would refer to and apply the substantive laws of another jurisdiction). Any suit or proceeding hereunder shall be brought exclusively in state or federal courts located in Harris County, Texas. Each party consents to the personal jurisdiction of the state and federal courts of said county and waives any objection that such courts are an inconvenient forum. This Contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Contract.
14.4. Limitations Period. Any claims or causes of action arising from or relating to the Products or this agreement must be instituted within two (2) years from the date upon which such claim or cause of action arose or was accrued.
14.5. Severability. If any provision of this Contract is held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of this Contract, and this Contract shall be construed as if such invalid or unenforceable provision were omitted.
14.6. Assignment. Buyer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Seller. Any assignment made in contravention of this Section 14.6 shall be null and void for all purposes.
14.7. Compliance with Laws. Each party hereto agrees to comply with all federal, state, and local laws, rules, and regulations in effect in the United States of America and any other country or territory in respect of their activities contemplated by this Agreement, including without limitation the United States Foreign Corrupt Practices Act.
14.8. Exports and Re-exports. Buyer shall be responsible for obtaining any licenses or governmental permits for export and import of the Products to the country of final destination or any other country where the Products may be landed or utilized. Buyer warrants it will not allow Products to be transferred at any time on either a temporary or permanent basis in any manner that would violate United States Export laws or regulations (“Export Laws”), including, but not limited to, the Export Administration Act of 1979, and the Arms Export Control Act of 1976, the Office of Foreign Assets Control (“OFAC”) Regulations, the Export Administration Regulations (“EAR”), and the International Traffic in Arms Regulations (“ITAR”) as such may be amended from time-to-time. Buyer shall further defend, indemnify and hold harmless Seller Group from and against any and all claims brought by or on behalf of any person or entity (including without limitation any governmental authority) arising out of or in connection with violations of this Article or the Export Laws by Buyer or its agents.
14.9. Amendment/Entire Agreement. This Contract may be amended only in a writing executed by the authorized representatives of both parties. This Contract constitutes the entire agreement between the parties relating to the sale of Products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter here for, and no representations or statements of any kind made by any representative of Seller, which are not stated herein shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in this Contract.