INVOICE TERMS AND CONDITIONS
DRAWWORKS, L.P.’s (“Seller”) quotation, sale and/or acceptance of Purchaser’s Purchase Order (“Order”) for Seller’s goods and/or services is expressly conditioned upon Buyer’s assent to the below Terms and Conditions. Buyer’s acceptance of Seller’s goods and/or services is also deemed by the Parties to be Buyer’s assent to such Terms and Conditions.
GENERAL: All Terms and Conditions of Quotation/Sale are as follows except as specifically noted on the face of the Seller’s Acknowledgement, Sales Order or Quotation.
REMEDY FOR FAILURE TO PAY: If the full payment is not received by the Seller within thirty (30) days after (i) notification of availability of goods for shipment or (ii) invoice for payment is sent by the Seller, Seller may, in its sole discretion, charge interest at the rate of 18% per annum on unpaid amounts, calculated and compounded monthly, not in advance, until paid in full. The Purchaser also agrees to pay all reasonable legal expenses and agency commissions sustained by Seller in pursuit of any payment which is past due, on a full indemnity basis. The remaining balance, plus all accrued interest, must be paid before Seller will ship any goods or provide any services to Purchaser. Should Purchaser fail to deliver the remaining payment balance owed, plus the accrued interest within ninety (90) days after notification, Seller reserves the right to sell the goods and seek any and all damages.
CANCELLATION: Should Purchaser cancel its order with Seller within one (1) week following the date of the Agreement, Seller will refund any deposit or down payment. If Purchaser cancels its order after one (1) week following the date of the Agreement, Purchaser agrees that Seller may retain all, or any portion thereof, of the deposit or down payment based upon the material and labor utilized to the time of cancellation as determined by Seller in its sole discretion. Seller shall invoice for any cancellation, the Purchaser will pay the Seller’s invoice within thirty (30) days from date of cancellation, plus all reasonable cancellation charges due to the Seller for an amount not to exceed 100% of the total quoted purchase price based upon material and labor utilized up to the time of cancellation.
LIMITED WARRANTY: Unless otherwise specified in writing in the Agreement, Seller warrants its goods and/or services to be free from defects in materials and workmanship for a period of 365 days from date of shipment from Seller’s factory locations. Should any part of such goods be found, under normal use and service during the warranty period to be defective, Seller will repair or replace such goods at its factory location, provided (i) that Seller receives written notice of the defective product or part within the warranty period, (ii) such defective product or part is returned to that location by the Purchaser on a prepaid freight basis no later than thirty (30) days after the expiration of the warranty period, (iii) that the Seller return material authorization number, invoice number and Purchaser’s purchase order number are noted on the shipping container and (iv) that inspection of the original goods establishes the claim defect to the satisfaction of Seller in its sole discretion.
Seller provides no warranty with respect to components manufactured by others which are subject to the warranties of their respective manufactures that are used in Seller’s goods or sold by Seller. Should any such component, provided by Seller, fail within the manufacturer’s warranty period, such component must be returned to Seller by the Purchaser on a prepaid freight basis in accordance with Seller’s return policy (section Returns below) so it can be returned to the original component manufacturer’s facility for evaluation and disposition. Any good that is repaired by Seller is warranted to be free from defects in materials and workmanship for a period of ninety (90) days from the date of completion of repair or the remaining portion of the original warranty, whichever is longer.
No warranty shall apply (i) to goods upon which repairs or alterations have been made (unless authorized by Seller), (ii) for goods misused, neglected and/or incorrectly installed, stored or operated or (iii) to goods which have not been operated or maintained by demonstrably competent personnel.
On-site warranty service may be provided by Seller upon request by Purchaser, and subject to conditions contained below, during the original warranty period for Seller’s goods which cannot be returned by the Purchaser to Seller’s designated service location due to logistical or financial reasons acceptable to Seller. Purchaser will be responsible for all normal travel and living expenses incurred by Seller’s technicians during any warranty service call and all costs associated with the transportation, taxes, duties and importation cost of all replacement components. Purchaser will also be responsible for the transportation, importation and exportation expense associated with any special tools required for this warranty work.
Purchaser will not be responsible for daily service charges associated with on-site repairs which are determined by Seller to be a covered warranty defect. Daily service charges for repairs determined by Seller to be the result of misuse, neglect, modification or incorrect installation or operation will be the responsibility of Purchaser.
WARRANTY/REMEDY: THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE NOT EXPRESSLY HEREIN, ARE HEREBY EXCLUDED. NO AFFIRMATION OR SELLER, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS WARRANT CLAUSE SHALL CONSTITUTE A WARRANTY. GOODS WHICH MAY BE SOLD BY SELLER BUT WHICH ARE NOT MANUFACTURED BY SELLER ARE NOT WARRANTED BY SELLER, BUT ARE SOLD ONLY WITH THE WARRANTIES.
DISCLAIMER OF CONSEQUENTIAL AND INCIDENTAL DAMAGES: IN NO EVENT SHOULD SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH.
FIELD SERVICE SUPPORT: Seller may provide qualified technicians to provide field service support for final installation, commissioning, training and required service regardless of whether such work is determined by Seller to be warranty work. Seller reserves the right to decline to provide field service support upon request if qualified technicians are unavailable or if logistical issues and/or if geopolitical situations may, in Seller’s discretion, jeopardize the personal safety of Seller’s personnel. When technicians are dispatched to provide field service support, Purchaser agrees to provide a purchase order for the amount of the estimated service cost, paid within thirty (30) days from invoice, in respect of all Seller’s charges, including the prevailing daily service charges, mileage charges, normal travel and living expenses from the time that Seller’s technician(s) leaves Seller’s designated point of origin and until the time that the technician(s) return to the point of origin. All such charges which exceed Purchaser’s approved available credit limit at the time of any field service call, must be prepaid to Seller by Purchaser before mobilization. Seller shall have no obligation to supply such technician until such charges are paid, unless alternative terms or credit limits determined by Seller are established. Any parts which are deemed by Seller’s technicians to be defective in material or workmanship will be provided free of charge to Purchaser, during the warranty term as stated above; however, Purchaser will be responsible for all transportation and important costs associated with these components. Reimbursement to Purchaser by Seller for any excess prepaid cost, or for costs of parts replaced under warranty, will be made to Purchaser within thirty (30) days from the date of Seller’s technician(s) return to Seller’s designated point of origin or the date of receipt of the defective parts in the Seller’s designated location, whichever is later.
When Seller provides field services support for final installation, commissioning and training Purchaser’s personnel for certain goods, Purchaser will be responsible for providing utilities, materials and labor to prepare the site for installation and preinstall goods in accordance with Seller’s written requirements. Failure of Purchaser to complete these responsibilities prior to the arrival of Seller’s service personnel will result in additional charges, and/or delays in completion of final installation and commissioning. If required, Purchaser is to provide a technical translator familiar with oilfield industrial or transportation terminology to facilitate this process. Should the stay of Seller’s service personnel be extended as a result of causes beyond the control of Seller or Seller’s personnel, Purchaser agrees to reimburse Seller for those documented expenses in excess of the pre-paid estimated or approved available credit limit amount within fourteen (14) days from invoice.
TITLE AND RISK OF LOSS: Title to and goods sold and risk of loss of such goods passes to Purchaser upon delivery by Seller to carrier, and any claims for losses or damage shall be made by Purchaser directly to carrier.
RETURNS: Seller’s return policy is independent from Seller’s warranty and service policies. Seller must authorize, in writing, any returns before any return will be considered by Seller for any refund. Goods returned without prior written authorization by Seller will not be accepted. Seller return invoice number and Purchaser’s purchase order number must be noted on the shipping container and all supporting documentation accompanying any authorized return shipment. Returns will be accepted only on new, unused, and/or standard stock goods returned within thirty (30) days of the date of the Agreement. Purchaser must return goods on a freight prepaid basis. Seller may, in its sole discretion, accept for return other items such as custom made goods, special order goods or goods requiring special processing. If Seller decides to accept for return such goods, Seller may charge Purchaser a restocking fee in order to do so. Electrical or electronic goods will not be accepted for return unless such goods fail to meet specifications or were shipped in error. A credit memo will be issued for those items determined by Seller to be in compliance with this return policy. A credit memo will be issued for original freight charges only in those cases where the goods were defective, were shipped incorrectly and/or failed to perform as specified.
CHANGES: Any request for changes to the order for goods and/or services after the date of the Agreement will not be effective unless accepted in writing by both parties. Any request for changes must be initiated by the party seeking the change in the form of a written notice of such request. The request for such change can be for one or more of the following: (1) the goods; (2) the specifications, drawings, designs or other such technical criteria; (3) field service needs; (4) goods quantities; (5) delivery dates; and (6) method or location of delivery. Notwithstanding the forgoing, Seller expressly reserves the right to change, discontinue and/or modify the design and manufacture of its goods without obligation to furnish, retrofit or install goods previously or subsequently sold. Purchaser shall be responsible for any increase in costs incurred by Seller as a result of an accepted change.
INDEMNIFICATION OF THIRD PARTY CLAIMS: PURCHASER ACKNOWLEDGES THAT IT IS A SOPHISTICATED USER, THAT IT HAS COMPLETE CONTROL OVER THE MANNER IN WHICH SELLER’S GOODS ARE USED AND THAT PURCHASER IS IN THE BEST POSITION TO KNOW IF SELLER’S GOODS ARE APPROPRIATE FOR USE BY PURCHASER IN ALL CIRCUMSTANCES. PURCHASER SHALL INDEMNIFY, DEFEND AND HOLD SELLER, ITS OWNERS, DIRECTORS, MANAGERS, OFFICERS, ATTORNEYS, AGENTS AND EMPLOYEES HARMLESS FROM ANY JUDGMENTS, PENALTIES, COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF LITIGATION) AND OTHER EXPENSES ARISING FROM OR RELATING TO CLAIMS, SUITS, DEMANDS, CAUSES OF ACTION OR LIABILITIES OF ANY KIND FOR PERSONAL INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE (INCLUDING POLLUTION AND DAMAGE TO REAL ESTATE, MINERAL INTERESTS AND RESERVOIRS) CAUSED OR ALLEGEDLY CAUSED FROM THE USE OR OPERATION OF THE SELLER’S GOODS, REGARDLESS OF THE BASIS THEREFORE, INCLUDING THE SOLE, JOINT AND CONCURRENT NEGLIGENCE OR GROSS NEGLIGENCE OF SELLER, STRICT LIABILITY IN TORT, BREACH OF CONTRACT OR VIOLATION OF ANY FEDERAL, STATE OR LOCAL STATUTE, ORDINANCE, RULE, REGULATION OR STANDARD. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE OF THE GOODS AND SERVICES ACQUIRED FROM SELLER ARE BASED UPON PURCHASER’S ASSUMPTION OF ALL RISKS ASSOCIATED WITH THE USE OF SUCH GOODS AND THAT THE FOREGOING INDEMNIFICATION IS INTENDED TO APPLY NOTWITHSTANDING SELLER’S SOLE, JOINT AND CONCURRENT NEGLIGENCE OR FAULT.
INDEMNIFICATION FOR PATENT INFRINGEMENT: Purchaser shall indemnify Seller, in respect of all losses, claims, damages, costs and expenses, including legal expenses on a full indemnity basis, arising out of patent infringement claims arising from modifications made by Purchaser to Seller’s goods unless such modification has been approved by Seller in writing, use of Seller’s goods in connection with other goods not supplied by Seller, or use of Seller’s goods for a purpose for which they are not intended.
COMPLIANCE WITH ANTI-CORRUPTION LAWS: Purchaser represents and warrants, in connection with the transactions contemplated by this Agreement, and any other agreement contemplated by or entered into pursuant to this Agreement, that it shall take no action, directly or indirectly, that would constitute a violation of the United States Foreign Corrupt Practices Act, Canadian Corruption of Foreign Public Officials Act, United Kingdom Bribery Act or any other applicable anti-bribery or anti-corruption law, convention or regulation (collectively, “anti- corruption laws”). Purchaser acknowledges and confirms that it is familiar with the provisions of the anti-corruption laws. Purchaser hereby agrees to indemnify, defend and hold harmless Seller from and against any and all losses, causes of action, liability, claims, demands, damages, judgements, awards, cost or expenses (including our legal fees and expenses on a solicitor-client basis) (collectively “Claims”) arising in connection with any alleged breach by Purchaser. Seller reserves the right to terminate the Agreement in its entirety, without liability to Purchaser, if Seller has a good faith basis for believing Purchaser has violated or intends to violate any country’s anti-corruption laws.
COMPLIANCE WITH EXPORT RESTRICTIONS: Seller’s goods may be subject to the export control laws of the United States, Canada or other countries where its products are sold. Purchaser acknowledges that it will comply with all such laws and regulations, and obtain all licenses to export, re-export or import Seller’s products as may be required. Purchaser will not, without first obtaining any necessary licenses, export or re-export any of Seller’s products, proprietary information or related technical data: (i) for any prohibited end uses; (ii) to any prohibited destinations; or (iii) to any individuals or entities that are presently on any denied party lists. Diversion contrary to U.S. law is prohibited.
Purchaser shall assist Seller in obtaining any necessary export license or end-use statements for Seller’s goods and/or services required for Seller to deliver its goods and/or services to Purchaser. Seller shall not be liable to Purchaser for any failure to provide goods, services or technical data as a result of any of the following governmental actions: (1) refusal to grant export or re-export licenses; or (2) cancellation of exports or re-export licenses. Seller reserves the right to not ship the goods and/or services and terminate the Agreement in its entirety, without liability to Purchaser, if Seller has a good faith basis for believing Purchaser has violated, or intends to violate, any country’s export regulations. Purchaser hereby agrees to indemnify, defend and hold harmless Seller from and against any and all Claims arising in connection with any breach, or alleged breach, of this Agreement by Purchaser.
TERMINATION: In addition to any other remedies available to Seller at law, Seller may terminate the Agreement with the Purchaser in the event that:
(a) Purchaser fails to perform its obligations under or otherwise breaches any provisions of the Agreement or any other contract between Purchaser and Seller or any of Seller’s affiliates;
- Purchaser ceases to carry on its business substantially as such business is conducted on the date of the Agreement and such change in circumstances modifies Seller’s obligations or impairs either party’s ability to discharge its obligations under the Agreement;
- Purchaser is the subject of creditor protection of bankruptcy, reorganization, liquidation receivership or similar proceedings;
- Purchaser is unable to pay its debts as they become due; or
- Any term, condition or provision of the Agreement or any other contract between the Purchaser and Seller becomes invalid or illegal under any applicable law, rule or regulation. PAYMENT: Customer shall mail all payments to DrawWorks, L.P., P.O. Box 280, Boling, Texas, 77420-00280.
Seller assumes no liability for damages incurred as a result of its late delivery of goods and/or services regardless of cause.
ASSIGNMENT: This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of Purchaser and Seller provided, however, that buyer may not assign or transfer this contract, in whole or in part, except upon the prior written consent of Seller.
GOVERNING LAW: This Agreement shall be construed in accordance with and governed by the laws of the State of Texas without regard to its conflict of law provisions. All actions or proceedings arising directly or indirectly herefrom shall be litigated only in the courts of the State of Texas or United States federal courts located therein and the parties hereby consent to the jurisdiction and venue of such courts in Harris County, Texas.
LIMITATION OF LIABILITY: Sellers’ liability under this Agreement for damages, regardless of cause, shall be limited to the purchase price of the goods and/or services covered by this Agreement.