PURCHASE ORDER TERMS AND CONDITIONS
PerfX Wireline Services, LLC(“PERFX”) makes the following Purchase Order to SELLER and the accepted Purchase Order shall be governed by the terms and conditions stated herein (referred to herein as “Agreement”).
Where the terms of this Agreement conflict with the Master Purchasing Agreement between PERFX and SELLER, the provisions of the Master Purchasing Agreement shall govern over the conflicting terms of this Agreement. It is expressly understood and agreed that no provision of any delivery ticket, invoice, confirmation of purchase order, or other instrument used or provided by SELLER shall supersede the provisions of this Agreement or the Master Purchasing Agreement.
2. DELIVERY OF GOODS
a. Upon acceptance of this Purchase Order by SELLER to provide Goods, SELLER shall deliver the Goods at the agreed time and place.
b. All Goods shall be manufactured and delivered in a good and workmanlike manner in strict conformity with the terms, conditions, specifications and requirements contained in the Contract and in accordance with good industry practices.
c. SELLER represents and warrants that it has the financial means to meet its obligations under this Agreement and any Contract and that it possesses the certification(s) and/or license(s) required by any governing body in the jurisdiction(s) in which the Goods are to be provided.
3. INDEPENDENT CONTRACTOR RELATIONSHIP
a. SELLER is and shall be at all times an independent contractor. Neither SELLER nor anyone employed by SELLER shall be deemed for any purpose to be an employee, agent, servant or representative of PERFX.
b. PERFX shall have no power or authority to direct, supervise or control SELLER with respect to the means, manner or method of delivery of the Goods or services performed or rendered hereunder, and SELLER, in the exercise of his independent employment and as an independent contractor, shall select the means, manner and method of performance thereof. The Goods delivered and services performed for PERFX hereunder shall meet with PERFX’s or its designated representative’s approval. PERFX or its designated representative shall be entitled to inspection to the extent necessary to assure such results.
c. PERFX’s failure to inspect or test, or to discover defective workmanship, material or equipment, shall not relieve SELLER of any responsibility. Payment of any funds by PERFX to SELLER shall not constitute a waiver or acceptance of defects in SELLER’s performance. PERFX’s inspection or failure to inspect Goods, shall not constitute a waiver of any express or implied warranties. No payment by PERFX shall constitute a waiver of any express or implied warranties. Any waiver by PERFX of any rights granted pursuant to this Agreement or by applicable law must be in writing, signed by an authorized representative of PERFX, and must particularly describe the rights being waived.
4. GOODS, SERVICES, AND OTHER ITEMS PROVIDED BY SELLER
a. SELLER shall furnish, operate and maintain at its own risk, cost and expense, all equipment, supplies and materials specified in the Contract or which may be necessary to deliver the Goods. To the extent SELLER performs services associated with the Goods for PERFX, SELLER shall be at all times liable and responsible for and agrees to defend, indemnify and release PERFX for damage to or destruction of SELLER's equipment and materials, regardless of how such damage or destruction occurs.
b. The following shall apply to all Goods and rentals provided by SELLER.
i. SELLER expressly warrants that for a period equal to the longer of: (x) twenty-four (24) months from the date such Goods are delivered to PERFX or (y) the duration of SELLER’s standard warranty in effect at the time such Goods are delivered to PERFX, all Goods, materials, equipment and rentals furnished hereunder shall conform to the specifications, drawings, samples or other description furnished or specified by PERFX and shall be of good material and workmanship, free from defect, and shall be merchantable, and fit for their intended purpose and that all services will be performed in a good and workmanlike manner. This warranty shall survive any inspection, test, acceptance and/or payment for the Goods, materials, equipment and rentals, as well as any termination of this Agreement or the applicable Purchase Order, and shall run to PERFX, its successors, assigns, customers and all users of its products. SELLER further warrants and represents that the Goods will not infringe or otherwise violate the Intellectual Property (defined below) of any party. SELLER warrants that it holds title to the Goods delivered to PERFX hereunder, which shall be free of any claims, charges, liens or encumbrances. SELLER agrees to defend, indemnify and hold harmless PERFX Group from and against any and all claims, liabilities or losses of whatsoever kind or character incurred by PERFX Group as a result of any breach of this warranty. This warranty shall be in addition to any other warranties expressed or implied by law, as well as any standard warranty or guarantee expressed by SELLER.
ii. At its option, PERFX may (i) return for credit or refund or (ii) require, at locations designated by PERFX, immediate correction or replacement of any and all rejected, defective or non-conforming Goods, materials, equipment and rentals. Return of rejected, defective or non-conforming items shall be at SELLER’s sole cost and expense. All replacement items shall be subject to the terms of the Purchase Order.
5. COMPENSATION, INVOICING AND PAYMENT
a. SELLER shall be compensated as provided in a Contract, subject to the Goods being accepted by PERFX as fully complying with all the terms, conditions, specifications and requirements of the Contract and provided that SELLER shall have satisfied PERFX that there are no liens or claims on or against PERFX or PERFX’s customer’s property by reason of the operations of SELLER. SELLER’s failure to comply with the terms, conditions, specifications and requirements of this Agreement or a Contract shall be grounds for nonpayment.
b. Within fifteen (15) days after the end of each calendar month, SELLER shall submit its invoices covering charges under any Contract for the previous calendar month. If the Parties so agree in writing, invoicing may be on a job basis in lieu of monthly invoicing. All invoices must be submitted within ninety (90) days of the date the Goods were provided, or they will be time-barred. PERFX shall have no obligation to pay, and SELLER hereby waives, releases, and disclaims any right to claim or receive (under any legal or equitable theory, including, without limitation, unjust enrichment or quantum merit), any compensation for Goods covered by invoices which are not submitted within ninety (90) days of the date the Goods was provided. Invoices shall be submitted in such form and accompanied by such certification and documentation as PERFX may request, including but not limited to:
i. the dates and hours labor was employed in delivering the Goods;
ii. the types and quantities of materials or supplies furnished by SELLER and utilized in the manufacture of the Goods; and,
iii. the dates and hours equipment or machinery was employed in performing any services related to the Goods.
c. PERFX shall, within sixty (60) days of receipt of each properly submitted invoice, pay, or cause to be paid, the approved amount of SELLER's invoice.
d. If PERFX disputes any invoice in whole or in part, PERFX shall promptly notify SELLER of the dispute and shall pay only the undisputed portion. PERFX and SELLER shall endeavor to settle and adjust any disputed amount forthwith. Should SELLER purchase any equipment, machinery, materials or supplies at PERFX's written request under the terms of any Contract, PERFX agrees to pay SELLER the actual cost of such items, less any cash discounts or rebates thereon to which SELLER may be entitled. SELLER agrees to furnish PERFX copies of the supplier's, vendor's or other third party’s invoices covering such items. If requested by PERFX, SELLER shall request suppliers, vendors or other third parties to invoice PERFX directly, provided that such direct invoicing does not result in a higher charge being made.
e. Any payment made by PERFX shall not prevent PERFX from filing claims nor prejudice its rights to recover the amount of such claims however they may have arisen. Without limiting the type or nature of the claims mentioned in the preceding sentence, PERFX may recover any sums paid SELLER by mistake of law or of fact.
f. SELLER agrees to pay all claims for labor, materials, services, and supplies furnished by SELLER hereunder and agrees to allow no claim, lien or charge to be fixed upon any property of PERFX Group (defined below) (collectively, the “Lienable Property”).SELLER further agrees not to issue any notices, instruments or other declarations to any person or entity regarding SELLER’s ability or intent to file claims, liens or charges against the Lienable Property. SELLER agrees to indemnify, protect, defend, and hold PERFX Group harmless from and against all such claims, charges, and liens. If SELLER shall fail or refuse to pay any claims or indebtedness incurred by SELLER in connection with the Goods and services as provided hereunder, it is agreed that PERFX shall have the right to pay any such claims or indebtedness out of any money due or to become due to SELLER hereunder. Notwithstanding the foregoing, PERFX agrees that it will not pay any such claim or indebtedness as long as same is being actively contested by SELLER and SELLER has taken all actions necessary (including the posting of a bond when appropriate. to protect the property interests of PERFX Group and any other party affected by such claim or indebtedness.
PERFX may, at any time, in its sole discretion, terminate this Purchase Order. In the event of such termination, SELLER shall be paid at the prices contained in the Purchase Order for the Goods and services delivered up to the date of such termination. In no event shall SELLER be entitled to be paid prospectively for Goods or services not delivered by reason of such termination, nor shall SELLER be entitled to any other compensation or damages, including but not limited to consequential damages for loss of anticipated profits or otherwise. On written notice of such termination, SELLER shall promptly remove its service-related personnel, machinery, and equipment from PERFX’s locations, if any, and shall further cooperate with PERFX or its designee to ensure an orderly and expeditious delivery of any Goods then in transit to PERFX.
7. RISK ALLOCATION AND INDEMNITY
a. For purposes of this Agreement, “PERFX Group” means: (i) PERFX and its parent, subsidiary and affiliated companies, (ii) entities for whom PERFX or its parents, subsidiaries or affiliates perform services, (iii) contractors (other than SELLER) hired by PERFX or entities for whom PERFX or its parents, subsidiaries or affiliates perform services, and (iv) the directors, officers, employees, servants, agents, representatives of each of the foregoing.
b. For purposes of this Agreement, “SELLER Group” means: (i) SELLER, its parents, subsidiaries and affiliates, and the directors, officers, employees, servants, agents, representatives, contractors, and invitees of each of the foregoing, and (ii) SELLER’s contractors of any tier, and the directors, officers, employees, servants, agents, representatives and contractors and invitees of SELLER’s contractors.
c. SELLER shall be liable for, and hereby releases, all claims against PERFX Group with respect to all losses, costs, damages, expenses and legal fees which SELLER may suffer, sustain, pay or incur directly or indirectly arising from or on account of bodily injury to or death of any persons in the SELLER Group or damage to or loss of property owned by a member of the SELLER Group arising out of or relating to the Agreement or any Contract. in addition, SELLER shall defend and indemnify PERFX Group against all actions, proceedings, claims, demands, losses, costs, damages, expenses and legal fees whatsoever which may be brought against PERFX Group or which PERFX Group may sustain, pay, or incur, directly or indirectly on account of (1) bodily injury to or death of any person in the SELLER Group, or loss of or damage to any property owned by a member of the SELLER Group, or (2) bodily injury or death of any person or loss of or damage to any property resulting from any negligent act or willful misconduct of any person within the SELLER Group, or (3) allegations of any kind or character alleging infringement or violation of any Intellectual Property (defined below), or (4) breach by SELLER Group of any of the representations, warranties, covenants, or obligations under this Agreement.
d. Except as otherwise specified herein, the liability, release and indemnity provisions contained in this Agreement shall apply notwithstanding any breach or alleged breach of this Agreement or any Contract and shall be without regard to cause or causes, including without limitation pre-existing defects in equipment or materials, the negligence, whether sole, concurrent, active, passive, primary or secondary, of either party or any other person including without limitation the party or person being released or indemnified, or otherwise, strict liability or the unseaworthiness of any vessel ingress and egress, loading and unloading.
e. The liability and indemnity provisions of this Agreement and any Contract shall be without limit and include the obligation to indemnify for any punitive damages which might be awarded and reasonable attorneys' fees and costs incurred by the party receiving indemnification. The indemnity obligation shall also include reasonable attorneys' fees and costs incurred by the prevailing party in any action to enforce the indemnification agreement. if it is judicially determined that the monetary limits of the indemnities voluntarily assumed hereunder (or of the insurance required under Section 9) exceed the maximum limits permitted under applicable law, it is agreed that said indemnities or insurance requirements shall automatically be amended to conform to the maximum monetary limits permitted under such law.
f. each of the parties hereby acknowledges and agrees that it has in fact read this Agreement in its entirety and is fully informed and has full notice and knowledge of the terms, conditions and effects of this Agreement, that it has had the opportunity to consult or has been represented by legal counsel of its choice throughout the negotiations preceding the execution of this agreement and has received the advice of its attorney in entering into this agreement, and that it recognizes that certain of the terms of this Agreement (including, without limitation, the terms of Section 10) result in one party assuming the liability inherent in some aspects of the transaction and
relieving the other party of its responsibility for such liability. Each party hereto agrees and covenants that it will not contest on any basis the validity or enforceability of any exculpatory provision of this Agreement including, without limitation, on the basis that the party had no notice or knowledge of such provision or that the provision is not “conspicuous”.
g. Neither party shall be liable to the other for special, indirect or consequential damages from or arising out of this Agreement or any Contract entered into pursuant to this Agreement, including, without limitation, loss of profit or business interruptions, however same may be caused.
h. The indemnity obligations contained in this Agreement or any Contract with respect to the injury to or death of any person in the SELLER Group or damage to or loss of property of any member of the SELLER Group shall be supported by liability insurance coverage in the amounts set forth in Section 9 above.
i. The parties are cognizant of statutes in various jurisdictions that nullify in whole or in part the indemnity obligations contained herein to the extent of the indemnitee’s negligence (including but not limited to Tex. Civ. Prac. & Rem. Code §127.001, et seq., La. Rev. Stat. 9:2780, N.M. Stat. Ann. §56-7-2 and Wyo. Stat. §30-1-131, et seq.) and of the public policy considerations underlying those statutes. Notwithstanding those statutes, the public policy considerations and the cases decided under those statutes, the parties confirm their intent to voluntarily honor and abide by the terms of the indemnity provisions in this Agreement, despite any nullifying effect the statutes or cases may have thereon.
a. SELLER shall pay all taxes, licenses, and fees levied or assessed on SELLER in connection with or incident to the performance of this Agreement by any governmental agency and unemployment compensation insurance, old age benefits, social security, or any other taxes upon the wages of SELLER, its agents, employees, and representatives. SELLER agrees to require the same agreements and be liable for any breach of such agreements by any of its contractors.
b. SELLER agrees to reimburse PERFX Group on demand for all such taxes or governmental charges, State or Federal that PERFX Group may be required or deem it necessary to pay on account of employees of SELLER or its contractors. SELLER agrees to furnish PERFX with the information required to enable it to make the necessary reports and to pay such taxes or charges. At its election, PERFX is authorized to deduct all sums so paid for such taxes and governmental charges from such amounts as may be or become due to SELLER hereunder.
9. LAWS, RULES AND REGULATIONS
a. SELLER agrees to comply with all laws, rules, and regulations, including but not limited to those relating to safety, health and the environment which are now or may become applicable to the Goods or to operations covered by a Contract or arising out of the performance of such operations and SELLER shall defend, indemnify and hold PERFX Group harmless from any costs or expenses of whatever nature, including any fine or penalty resulting from SELLER's failure to comply with such laws, rules, or regulations.
b. In the event any provision of this Agreement is inconsistent with or contrary to any applicable law, rule, or regulation, said provision shall be deemed to be modified to the extent required to comply with said law, rule or regulation, and this Agreement, as so modified, shall remain in full force and effect.
10. FORCE MAJEURE
Except for the duty to make payments hereunder when due, and the indemnification provisions under this Agreement, neither PERFX nor SELLER shall be responsible to the other for any delay, damage or failure caused by or occasioned by a Force Majeure Event that is outside the control of the Parties. As used in this Agreement, “Force Majeure Event” includes: acts of God, floods, fire or other natural causes, riots, epidemics and pandemics, war, rebellion, sabotage, acts of terrorism, civil strife, acts of public enemies, and acts of governmental authorities whether federal, state or local. Delays due to the above causes, or any of them, shall not be deemed to be a breach of or failure to perform under this Agreement.
11. INTELLECTUAL PROPERTY RIGHTS
SELLER agrees to defend, indemnify and hold PERFX Group harmless from any and all claims, suits, demands, and causes of action of every kind and character alleging infringement or violation of any intellectual property or other right of any person or other entity related to the Goods or any equipment, materials, machinery, supplies, property, methods or processes used or furnished by SELLER in connection with the delivery of the Goods hereunder (“Intellectual Property”).
12. POLLUTION AND HAZARDOUS WASTE
a. SELLER shall observe and comply with all laws, rules and regulations now or hereafter in effect whether federal, state or local, governing pollution and the generation and transportation of hazardous waste.
b. SELLER shall assume all responsibility for (including control and removal of the pollutant or hazardous waste. and shall protect, defend, indemnify and save PERFX Group harmless from and against all claims, suits, demands, and causes of action of every kind and character arising directly or indirectly from all pollution or contamination caused in whole or in part by SELLER Group’s breach of any laws, rules or regulations applicable to the Goods, or by the negligence or the willful misconduct of SELLER Group.
All drawings, specifications, designs, processes, reports, data and other technical or proprietary information (“Confidential Information”) furnished to SELLER hereunder are submitted confidentially. SELLER shall keep such Confidential Information in strict confidence and only use such information in connection with Goods delivered under a Purchase Order. SELLER shall not divulge to any third party or make any unauthorized use or disclosure of any proprietary or Confidential Information of PERFX Group without PERFX’s prior written consent. All such Confidential Information and any copies or reprints thereof made by SELLER shall be immediately returned to PERFX upon demand by PERFEX. PERFX shall not have any liability to SELLER resulting from the use of information, including any Confidential Information, supplied by PERFX to SELLER.
PERFX shall have the right to assign this Agreement to any parent, subsidiary or affiliate company or to the customer for whom PERFX is working. SELLER may not assign or sublet this Agreement or any Contract arising hereunder, in whole or in part, to any third party without the prior written consent of PERFX. This Agreement and each Contract arising hereunder shall inure to and be binding upon the successors and assigns of the Parties hereto.
15. TIME OF THE ESSENCE
Time is of the essence of this Agreement and of any Contract arising out of this Agreement.
16. TERMS OF DELIVERY
a. Delivery. All sales of Goods are FOB to the destination specified by PERFX in the Purchase Order or other destination as may be provided by PERFX. Any deviation must be approved by PERFX in writing prior to shipment. Any premium cost incurred for late deliveries shall be at SELLER’s sole cost and expense. Any expense incurred due to SELLER’s failure to furnish necessary shipping documents shall be at SELLER’s sole cost and expense. Any deviation from shipping instructions given herein or pursuant hereto shall be made at SELLER’s sole cost and expense.
b. Risk of Loss. The risk of loss and title with respect to Goods, materials and equipment (including transportation delays and losses) shall pass to PERFX upon delivery of the items by SELLER to PERFX. No loss, injury or destruction of the items prior to their delivery to PERFX shall release SELLER from any obligations with respect to the items (including, without limitation, SELLER’s obligation to timely deliver and/or replace said items).
c. Inspection. PERFX reserves the right to inspect and test any and all Goods, materials and/or equipment provided for in any Purchase Order at any time (including the period of manufacture. and at any location (including SELLER’s premises). SELLER shall provide PERFX’s inspectors reasonable access to any and all facilities. The foregoing shall not release SELLER from its obligation to adequately test and inspect all items, nor shall the foregoing relieve SELLER from its obligation to furnish items which conform to all contractual requirements and are free from defect. Notwithstanding prior inspection or payment, all Goods, materials and equipment are subject to final inspection and acceptance upon delivery. In the absence of a packing list, PERFX’s count of the items shall be accepted as conclusive. PERFX shall be entitled to withhold payment until such time as SELLER provides an adequate packing list.
d. Packing and Shipping. SELLER shall suitably pack, label and ship all Goods, materials and equipment in accordance with the requirements of common carriers and in a manner which will (x) assure arrival of items in a safe and undamaged condition, (y) permit the efficient continuing storage of items under normal conditions and (z) otherwise comply with special storage requirements for which PERFX has provided notice. No additional fee for packing, shipping or drayage shall be charged by SELLER unless otherwise stated in the Purchase Order or in a signed writing agreed to by PERFX. Each package or container delivered must be appropriately labeled to show the Purchase Order number and must include a packing list; each item therein must be tagged or marked with the corresponding Purchase Order number and item/part number, including the revision number as shown on the Purchase Order.
e. Specialty Goods. Where any Goods, material and/or piece of equipment is specially manufactured or procured under a Purchase Order, whether of the design of SELLER, PERFX, or a third party, SELLER must obtain PERFX’s written consent in order to sell such part or item to any third party. At PERFX’s request, the SELLER shall at its own expense furnish to PERFX, the engineering drawings, handbooks, operation and service manuals and other technical data related to the items purchased.