ACCEPTANCE; TERMS and CONDITIONS:
The Purchase Order is DrawWorks, LP (hereinafter referred to as “Buyer”) offer to Seller and does not constitute an acceptance by Buyer of any offer made by Seller. By acknowledging receipt of the Purchase Order, commencing performance pursuant to the Purchase Order or shipping the Goods, Seller confirms its agreement to the terms and conditions of sale contained in the Purchase Order, which is deemed to include by reference these standard terms and conditions. Buyer objects to and rejects any additional or different terms contained in any acknowledgment form or invoice sent by Seller, and the terms and conditions in the Purchase Order govern in the event of conflict unless such conflicting terms are accepted in writing by Buyer. Buyer may at any time insist upon strict compliance with these terms and conditions notwithstanding any previous custom, practice or course of dealing to the contrary. In case of a conflict between these standard terms and conditions and other terms provided in the Purchase Order, such other terms will govern.
Seller may not substitute any products or services for Products ordered and may not make any changes to the specifications, country of origin, manufacturing location, quality assurance processes, components, or production processes for any Product without the prior written approval of Buyer. Buyer may, at any time and at its discretion, modify the quantities, specifications, Products, and delivery dates stated in the order, or suspend the order, by submitting a written change order to Seller. No claims or charges will be allowed by Buyer as a result of a change order or for additional work or material, or for drayage or packing, unless Seller obtains Buyer’s written approval for the charges prior to incurring them.
The price for Products shall be the price stated in this order. Prices are inclusive of all handling, taxes, duties, fees, or charge of any kind, except that prices do not include any applicable state or local sales or use tax. Any such taxes which Seller is obligated to collect shall be added to the invoice as a separate charge to be paid by the Buyer. Buyer reserves a security interest in all goods paid for but not delivered and Seller will execute such documents of acknowledgment as are requested by Buyer.
Seller shall deliver Products on the date stated on the face of this order. Unless otherwise designated on the face of this order, title and risk of loss to all Products purchased hereunder shall pass to Buyer upon acceptance F.O.B. receipt point(s) designated in this order. Use of a portion of the Products for the purpose of testing shall not constitute an acceptance of the goods. Seller shall promptly provide the following information to Buyer: 1) all information requested by Buyer to timely file an Importer Security Filing (“ISF”) with the U.S. Customs and Border Protection, including the Products’ ECCN classification number and the Products’ Harmonized Tariff Code; 2) all information requested by Buyer to comply with the laws of the country of import; 3) all information required by Buyer to export or re-export the Products; 4) the country of origin for all Products; 5) Seller’s declaration of preferential origin or preferential certificates; and 6) all other information reasonably requested by Buyer. Seller will promptly provide all commercial invoices and packing lists in the form and including all information reasonably requested by Buyer.
Time is of the essence. If Seller delivers Products that are late and do not strictly comply with this order or any applicable Purchase Order, without limiting Buyer’s other remedies, (a) Seller shall pay Buyer, at Buyer’ option, either (i) the actual damages incurred by Buyer, or (ii) 4% of the order price for each day delivery is not made in accordance with the this order or the applicable Purchase Order, up to 40% of the total price of the order; and (b) Buyer may reject the Products.
Neither party shall be liable for delays caused by acts of God, riots, war, rebellion, sabotage, acts of terrorism, acts of public enemies, and acts of governmental authorities, provided notice thereof is given to the other party as soon as practicable. Buyer reserves the right to cancel this order without liability should such delays by Seller, in Buyer’s sole judgment, adversely affect Buyer.
Buyer may cancel this order, in whole or in part, at any time prior to shipment, without liability to Seller, and any time following shipment with liability to Seller in the amount of a reasonable cancellation fee as determined by Buyer. Seller will refund all amounts pre-paid by Buyer for the order within thirty days of Buyer’s cancellation.
After complete delivery has been made, Seller will submit one invoice for all Products purchased under this order. All invoices must be submitted within ninety (90) days of the date of complete delivery or service was provided or they will be time-barred. Buyer will specify which of the following methods Seller must use in submitting this invoice: a) U.S. Postal Mail or b) electronic data interface (EDI). Failure to submit one complete invoice via the specified invoicing method will result in delayed payment or refusal to pay for any and all goods and services on this order. Buyer shall pay undisputed amounts owed to Seller for Products within 45 days of the Buyer’s receipt of a correct invoice. If Buyer pays amounts owed to Seller within 15 days of the later Buyer’s receipt of an invoice, the payment owed to Seller for those Products will be reduced by 2%. Buyer may deduct any amount owed by Seller to Buyer as a setoff against any amount due to Seller under this order.
Buyer has the right to expedite all or part of this order. In addition, Buyer has the right to audit and inspect, at any reasonable time during or subsequent to performance of this Purchase Order, Seller’s and its subcontractor’s books, records, inventory, tooling, and plants to assure compliance with this order or any applicable law.
If Buyer is made aware of an opportunity to purchase any Products from a third party source for a price below that being offered by Seller, Buyer may terminate this order as to that product and purchase and such Products from such third party source without being in default hereunder or terminating this order as to any other Products covered by this order. Buyer will advise Seller of the offered lower price within five (5) days of being made aware of the lower price and afford the Seller the opportunity to meet such lower price. If Seller does not choose to meet the third party price, Buyer may take the action indicated above.
COMPLIANCE WITH LAWS:
Seller will comply fully with every statute, law, regulation and order applicable to the Products and
.Seller, and will indemnify, defend and hold harmless Buyer from Seller’s failure to do so. Without limiting the generality of the foregoing, Seller specifically agrees to comply with each of the following to the extent they are applicable to any Purchase Order of Buyer: The Equal Employment Opportunity Clause in Section 202 of Executive Order 11246, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, and Sections 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended, and 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-250 and 60-741 relative to equal employment opportunity and the implementing rules and regulations of the Office of Federal Contract Compliance Programs, and the Foreign Corrupt Practices Act.
If a conflict exists between terms of this agreement and any other agreement, either past, present or future between Buyer and Seller, the terms of this agreement shall prevail. If any provision of this agreement is held by court of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect.
Section headings are for convenience only and shall have no legal or interpretive effect. This Purchase Order shall be governed by and construed under the laws of the State of Texas, without regard to its conflicts-of-law rules. In the event any dispute arises under this Purchase Order that exceeds $100,000 that cannot be resolved by informal negotiation, the parties agree to participate in mediation as a condition precedent to pursuing litigation. The mediation shall be conducted by a licensed, qualified mediator in Houston, Texas. Nothing herein shall be construed as creating an exclusive relationship between Buyer and Seller regarding the goods or services. Buyer reserves the right to engage other persons or entities to provide goods and services similar to those provided hereunder. Buyer shall have the right to audit the books and records of Seller relevant to this Purchase Order, at Seller’s place of business or by electronic delivery, until four (4) years after delivery of goods and/or performance of services. Any notices required hereunder shall be
given in writing to the addresses set out in the Purchase Order and shall be deemed effective on the same day any such written notice is personally served, or on the third (3rd) day after such notice is deposited in the United States mail or with a nationally recognized overnight delivery service.
When Seller performs work of any description in furtherance of the Purchase Order on the premises of Buyer or any of Buyer’s customers, Seller agrees that such services are to be rendered by Seller as an independent contractor and Seller will provide all safeguards and take all necessary precautions to prevent the occurrence of any accident, injury, death or loss to any person or property and will be solely responsible therefore, except to the extent caused by the negligence of Buyer. Seller will maintain public liability and property damage insurance with reasonable limits covering its obligations and will also maintain proper worker’s compensation insurance covering all employees performing the Purchase Order.
Seller shall indemnify, hold harmless, and defend Buyer, Buyer’s affiliates and their respective officers, directors, agents, representatives, employees, subcontractors, customers, users of Seller’s goods and services from any and all claims (including, without limitation, claims by vendees of Buyer), liabilities, damages and expenses (including attorneys’ fees) arising from or related to (i) the negligence (including strict liability), gross negligence or willful misconduct of Seller, its affiliates and their respective employees, contractors, subcontractors, vendors and agents (the “Seller Parties”), (ii) contamination of or adverse effect on the environment, (iii) violation of any law or regulation and/or (iv) alleged infringement of any patent, copyright or trademark or violation of any other intellectual property right of a third party. This indemnity shall apply without regard to whether the claim, damage, liability or expense is based on breach of contract, breach of warranty, negligence, strict liability, or other tort. This indemnity shall survive delivery and acceptance of goods or services. In any interparty dispute, the prevailing party shall be entitled to reasonable legal costs and expenses, including attorneys’ fees.
PATENTS AND TRADEMARKS:
Seller warrants that all goods and services supplied under this Purchase Order shall not infringe on any third party’s patent, copyright, trade secret, trade name, trademark or service mark, or other proprietary right.
Buyer and Seller shall support the utilization of qualified minority-owned, women-owned and service disabled veteran-owned business enterprises (“M/W/VBEs”). Seller shall institute and maintain a supplier diversity program.
Seller shall keep confidential all information designated as confidential by Buyer or reasonable known to be confidential, including, but not limited to, designs, processes, drawings, specifications, reports, data and other technical or proprietary information and the features of all parts, equipment, tools, gauges, patterns and other items furnished or disclosed to the Seller by Buyer in connection with this Purchase Order (“Buyer’s Confidential Information”). Seller shall not disclosure such information to any third party without the written consent of Buyer and shall not use Buyer’s Confidential Information except as contemplated in this Purchase Order. Upon completion or termination of this Purchase Order, Seller shall return all Buyer’s Confidential Information to Buyer or make such other disposition thereof as may be directed and approved by Buyer and shall certify to such return or destruction.
SUBCONTRACTING AND ASSIGNMENT:
Seller may not assign this Purchase Order or any rights hereunder, nor delegate any duties, nor subcontract any work, without first securing the written approval of Buyer. Any attempts to do so will be null and void. The price quoted by Seller includes the price of any goods or services obtained from any subcontractor or supplier to Seller, unless otherwise agreed in advance by Buyer. Seller shall incorporate these terms and conditions on any order or subcontract approved by Buyer and procured from third parties pertaining to this Purchase Order. Seller shall remain fully responsible for all work performed by such third parties and shall indemnify and hold Buyer harmless for any payment required to be made to any such parties.
Except as may be required by law or governmental rules or the requirements of any exchange on which securities of Seller or an affiliate of Seller are traded, Seller shall not, without the prior written consent of Buyer, which may be granted or withheld at Buyer’s sole discretion: (a) use Buyer’s name, brand, trademarks or any descriptions of Buyer and/or its industry that would allow a third party to identify Buyer (“Buyer’s Brand”), in advertising or promotional material, publicity releases or for any other commercial purpose; (b) in any manner advertise, publish or disclose the fact that Buyer has placed this Purchase Order with Seller; or (c) disclose the subject matter or terms and conditions of this Purchase Order. Seller shall comply with the restrictions accompanying Buyer’s consent, including but not limited to scope and term limitations. Unless otherwise specified by Buyer in writing, Buyer consents shall be deemed to be “initial use only,” and will expire immediately after Seller’s first use of Buyer’s Brand as set forth in the applicable Buyer consent. Any and all subsequent uses, including but not limited to re-publication of advertising or promotional material, duplicate or follow-up press releases or like publications shall each require an updated consent, duly executed by the Buyer. In no case shall Seller or an affiliate of Seller use Buyer’s Brand or information about Buyer’s industry, equipment or operations in a manner that disparages Buyer.