GENERAL. All quotations (offers) and sales made by LIGHTNING PRODUCTION SERVICES, LLC (LPS, LLC), (“the Seller”) are based upon and conditioned upon the following terms and conditions. No provision, printed or otherwise, contained in any order, acceptance, confirmation, or acknowledgment that is inconsistent with, different from, or in addition to these Standard Terms and Conditions of Sale is accepted by Seller, unless specifically agreed to in writing by Seller. No order for or changes to any terms or scope of an order for the Seller’s goods (“Goods”) shall be binding until accepted in writing by the Seller at its home office at Humble, Texas. All Goods of Seller are supplied only under the following Terms and Conditions, and the use and/or acceptance of any Seller’s Goods or services by Buyer shall constitute Buyer’s acceptance of these Terms and Conditions in their entirety.
1. QUOTATIONS. Seller’s quotations are valid for thirty days from the date of the quotation unless otherwise stated. The latest quotation supersedes all previous quotations or correspondence concerning the transaction. The Seller’s quotations contain proprietary information of Seller and are provided to Buyer with the understanding that the information will be used by Buyer solely for purposes of internal evaluation. The Seller’s quotations and the proprietary information contained therein may not be disclosed by the Buyer to any third party or used in the preparation of any request for quotation for Goods similar to, or as a substitution for, Goods quoted by the Seller.
2. PRICE. Unless otherwise stated in writing by Seller, the price offered by Seller does not include any cost of transportation, handling, crating, packing, duties, tariffs, or any taxes imposed by any government or governmental entity or agency, except for income and margin taxes levied upon Seller by the US and/or Texas governments. To the extent allowed by applicable law, the Buyer shall be responsible for all other taxes and for the filing and paymentthereof, including, but not limited to, transfer, VAT, provincial, sales, use, and excise taxes, and buyer shall indemnify and hold harmless the Seller against any liability arising therefrom.
3. PAYMENT. Payment shall be made in accordance with quoted terms. If requested by Seller, payment shall be made in advance or by irrevocable letter of credit confirmed by a prime U.S. bank. To the extent permitted by applicable laws, Buyer shall pay on demand, as a late charge, an amount equal to [1.5% per month of each payment that remains overdue, or the maximum rate allowed by applicable law, whichever is lower. Buyer’s failure to make payment when due shall be a material breach of the order and of these terms and conditions. The Seller, at its sole option, and without incurring any liability, may suspend its performance until such time as the overdue payment is made or Seller is provided assurances, adequate in Seller’s sole discretion, that the payment shall be promptly made. In the event of such suspension of performance by Seller, there shall be an equitable adjustment made to the delivery schedule and order price reflecting the duration and cost resulting from such suspension. Payments due hereunder shall in no event be subject to set-off with any other order or business arrangement. Waivers of lien by Seller shall be contingent upon Seller receiving in full all payments due hereunder.
4. OBLIGATIONS OF BUYER. Buyer is solely responsible for identifying and defining all processes, specifications, and environmental and mechanical considerations that may affect the performance, reliability, or operation of the Goods furnished by Seller. Seller’s quotation and any sale is based upon the covenant by Buyer, set forth in this paragraph, that all information and data provided to Seller by Buyer is full, complete, accurate, and free from of any error or misleading information.
5. LIMITATION OF SELLER’S LIABILITY. SELLER’S LIABILITY IS LIMITED TO THE PRICE ALLOCABLE TO THE GOODS DETERMINED DEFECTIVE, AND IN NO EVENT WILL SELLER’S CUMULATIVE LIABILITY BE IN EXCESS OF THE TOTAL PURCHASE PRICE ACTUALLY RECEIVED BY SELLER, REGARDLESS OF WHETHER SUCH LIABILITY ARISES UNDER WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, INDEMNITY, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOSEVER.
6. INDEMNITY. BUYER SHALL AND DOES HEREBY DEFEND, INDEMNIFY, AND HOLD HARMLESS SELLER AND ALL OWNERS, EMPLOYEES, MANAGERS, AND AFFILIATES OF SELLER AGAINST ANY COSTS OR CLAIMS ARISING IN CONNECTION WITH BUYER’S PURCHASE, DELIVERY, AND/OR USE OF THE GOODS, EXCEPT FOR COSTS OR CLAIMS DIRECTLY ARISING SOLELY FROM A DESIGN OR MANUFACTURING DEFECT CAUSED SOLELY BY SELLER. SELLER SHALL AND DOES HEREBY DEFEND, INDEMNIFY, AND HOLD HARMLESS BUYER, AND ALL OWNERS, EMPLOYEES, MANAGERS, DIRECTORS, AND AFFILIATES OF BUYER AGAINST ANY COSTS OR CLAIMS ARISING IN CONNECTION WITH ANY MANUFACTURING OR DESIGN DEFECT IN THE GOODS, EXCEPT TO THE EXTENT SUCH DEFECT WAS BASED UPON INFORMATION PROVIDED TO SELLER BY BUYER.
7. EXCLUSION OF CONSEQUENTIAL DAMAGES. EXCEPT AS MAY BE PROVIDED IN SECTION 10 BELOW AND AS OTHERWISE SPECIFIED HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFIT WHETHER ARISING UNDER WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER.
8. TECHNICAL ASSISTANCE. It is expressly understood that any services or technical assistance furnished by Seller will be specified in a separate written agreement between the parties. In no event will any such services or technical assistance provided by Seller constitute a waiver by Seller of any of these terms and conditions or order or affect or expand Seller’s obligations under these terms and conditions, this order, or any other contractual arrangement.
9. PATENTS. Seller will, at its expense, defend and indemnify Buyer from any suit or proceeding brought against Buyer based on a claim that Goods manufactured and furnished by Seller constitute an infringement of any United States patent, if Seller is notified promptly in writing and given authority, information, and assistance for the defense of the suit or proceeding. Defense and settlement of any claim shall be within Seller’s sole discretion. Should it be held that the Goods constitute infringement and the use of the Goods is enjoined, Seller will, at its own expense and discretion, either procure for Buyer the right to continue using the Goods, replace the Goods with non-infringing goods, modify the Goods to become non-infringing, or remove the infringing Goods and refund the price paid for the respective Goods. Seller does not accept any liability for infringement of any thermal plastic resins, liners or coiled rod, or for Goods designed for or used in connection with such coiled rod or thermal plastic liner patents Buyer will indemnify Seller from any suit or proceeding brought against Seller by any third party based on claims that the Goods infringe any such patent, or with respect to any Goods designed and manufactured in accordance with designs furnished by Buyer.
10. CANCELLATION FEE. Unless otherwise agreed in writing by the parties, the Buyer may not cancel the order, except upon written notice and payment to Seller of an amount consisting of all costs incurred by Seller up to the time of cancellation along with those costs which arose out of or resulted from the cancellation, plus a cancellation fee of 50% of the order price. The minimum cancellation fee shall in no event be less than $500.00. Materials received, work in progress, Goods manufactured, and results and products of the work performed, in part or whole, prior to the time of cancellation, shall be retained by and shall be the property of the Seller. When calculating the cancellation-related payments, payments made by Buyer to Seller prior to cancellation shall be taken into account.
11. FORCE MAJEURE. Except for the obligations of making of payment when due, Seller and Buyer will be excused from their respective obligations in the event, and to the extent of, their respective performance being delayed or prevented: (a) by any circumstance (except financial) reasonably beyond their control, or (b) by natural disasters, fire, explosion, breakdown of machinery or equipment, plant shutdown, strikes or other labor disputes, riots or other civil disturbances, or voluntary or involuntary compliance with any law, order, regulation, ordinance, ruling, recommendation, or request of any governmental authority. In addition, Seller will be excused in the event of its inability to obtain materials necessary for manufacture of the Goods, and for total or partial failure of any of its usual means of transportation of materials and the Goods.
12. INDEPENDENT PARTIES; NO THIRD-PARTY BENEFICIARIES; ASSIGNABILITY; AND RESHIPMENT. Each party will be and act as an independent contractor and not as an agent or partner of, or joint venturer with, the other party for any purpose. Unless specifically agreed in writing by Seller in advance, the Services are provided for the benefit only of Buyer, and Seller shall bear no obligations toward any third-party beneficiary, regardless of whether, when, or how any such third-party beneficiary may have been made known to Seller by Buyer. No demand or claim against Seller arising directly or indirectly out of or in connection with the Services furnished by Seller to Buyer may be assigned by Buyer or by operation of law without the prior written approval of Seller. Services sold hereunder shall not be reshipped or rerouted to end-users or any end-use in violation of U.S. or international sanctions or regulatory requirements.
13. SHIPMENT. The shipping terms shall be EX WORKS Seller’s manufacturing facility (per the IIC’s INCOTERMS 2010), unless otherwise agreed by Seller in writing. If the Seller is requested by the Buyer to arrange for shipment of the Goods or any parts thereof, Buyer shall reimburse Seller for all freight, insurance and other shipping-related costs and handling fees for such shipment. If the Buyer has not issued inspection or shipping instructions by the time the Goods are ready for shipment, Seller may select any reasonable method of shipment, without liability by reason of its selection. Shipments made on Buyer’s behalf shall be insured at Buyer’s expense. Shipment of Goods held by reason of Buyer’s request or inability to receive the Goods will be at the risk and expense of Buyer. Timely delivery of the Goods shall be contingent upon, among other things, Seller’s receipt, within two weeks of the respective initial submittal, of all of the final customer approvals of drawings and other documents requiring customer approvals and Seller’s receipt of the order containing all of the mutually agreed upon terms and documents by a date no later than that set forth in the Seller’s proposal.
14. ADDITIONAL TERMS APPLICABLE TO SERVICES. In addition to the other Terms and Conditions set forth herein, all services provide by Seller related to the installation, testing, commissioning, or maintenance of the Goods at premises of Buyer or premises nominated by Buyer shall be subject to the quoted terms and to the following additional terms and conditions:
15. SEVERABILITY. Invalidity of any of these terms and conditions will not affect the validity of any other provision and the remaining provisions will remain in full force and effect.
16. WAIVER. Failure to enforce any of these terms and conditions in a particular instance will not constitute a waiver of, or preclude subsequent enforcement of, any of these provisions.
17. APPLICABLE LAW; LANGUAGE. These terms and conditions, this order, and the legal relations of the parties shall be determined in accordance with the laws of the State of Texas. The parties disclaim any applicability of the U.N. Convention of the International Sale of Goods to the order. The parties consent and will submit to the exclusive jurisdiction of the federal and state courts of Harris County, Texas with respect to all disputes relating to the order, the Terms and Conditions, this submission to jurisdiction clause, and all other matters pertaining to the relations between the parties. Unless provided in another language directly by Seller, the quote and these Terms and Conditions shall be in the English language, which shall be controlling for all legal purposes, and Buyer represents that (i) it has reviewed these with officers and/or advisors fluent in the English language, and that (ii) Buyer accepts any risk of mistranslation.
18. WARRANTY. If within 18 months from delivery of the Work on surface at specified shipping location, or one year from the date of field installation (down hole), whichever occurs first, any Goods furnished by Seller prove to be materially defective in material or workmanship, and Seller is so notified in writing, upon examination by Seller, Seller will, at Seller’s discretion, either repair the Goods or supply identical or substantially similar replacement Goods EX WORKS manufacturing facility. Any repaired or replacement Goods will be warranted against defects in material or workmanship only for the unexpired portion of the warranty applicable to the particular Goods. Goods not manufactured by Seller are subject only to warranties of Seller’s vendors, and Seller shall assign to Buyer all transferable rights in such vendors’ warranties. Seller shall furnish to the Buyer reasonable assistance in enforcing such rights. Seller will not be responsible for costs of making access for, or of export/import, shipment, removal or installation of, any items needed to repair or replace any defective Goods. Inexpensive items requiring repairs or replacement and routine maintenance-related or consumable items shall be outside the scope of these limited warranties. With regard to warranty-related remedial work, the Seller will not be responsible for materials or workmanship of others or shipment, labor, and other related expenses for any work performed by others in the repair or replacement of defective Goods, without Seller’s prior written consent. Seller’s performance guarantees, if any, shall be deemed to be met by a satisfactory demonstration of the Goods’ performance during a performance test, which shall be the responsibility of the Buyer, pursuant to mutually agreed upon test procedures. If the performance test is not 41843407.1completed within forty-five days after notice of availability for shipment, the performance test shall be deemed to be satisfactorily performed for any and all purposes. These limited warranties will be voided if: (a) the Goods were not stored, installed, maintained, or operated in accordance with accepted U.S. industrial practice and any recommendations provided by Seller; (b) the Goods were subjected to any accident, misapplication, environmental contamination, corrosion, abrasion, abuse or misuse; (c) Buyer used, repaired, or modified the Goods after discovery of the defect without Seller’s prior written consent to continue use; or (d) Buyer fails to permit Seller to examine the Goods and operating data or fails to furnish routine operating data sufficient to determine the nature of the defect claimed. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED HEREIN; SELLER EXTENDS NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. NO WARRANTY, EITHER EXPRESS OR IMPLED, IS GIVEN AS TO THE CAPACITY, EFFICIENCY OR PERFORMANCE OF THE GOODS, EXCEPT AS MAY BE EXPRESSLY AGREED TO BY THE PARTIES IN WRITING. BUYER’S REMEDIES ARE SPECIFICALLY LIMITED TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE GOODS, WHICH ARE BUYER’S EXCLUSIVE REMEDIES. SHOULD THESE REMEDIES BE FOUND INADEQUATE OR TO HAVE FAILED THEIR ESSENTIAL PURPOSE FOR ANY REASON WHATSOEVER, BUYER AGREES THAT RETURN OF THE FULL SALES ORDER PRICE TO IT BY SELLER SHALL PREVENT THE REMEDIES FROM FAILING THEIR ESSENTIAL PURPOSE AND SHALL BE CONSIDERED BY BUYER AS A FAIR, COMPLETE, AND ADEQUATE REMEDY.