General Terms And Conditions For The Sale Of Products
Pursuant to Section 2 of the terms and conditions set forth in the GENERAL TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS (the “Agreement”) located on the OFMP website (the “Site”), the terms and conditions of said Agreement take precedence and govern over any and all other contracts, master services agreements and/or other writings of any kind entered into or to be entered into between “Company” and “Client” (as these terms are defined in the Agreement) and/or between Company’s and Client’s affiliates (referred to herein as “Pre-existing Contract(s)”). However, if Client has a valid and current i) Pre-existing Contract, or ii) contract with an “Original Equipment Manufacturer” (“OEM”) that is listing products for sale on the Site (collectively referred to as “Acceptable Pre-existing Contract“), Client is permitted to issue purchase order(s) referencing and subject to such Acceptable Pre-existing Contract (the “Purchase Order”) when purchasing products listed on the Site. As such, the terms of such Acceptable Pre-existing Contract, in addition to “APPENDIX ONE: HIGH RISK PRODUCTS TERMS AND CONDITIONS” and “APPENDIX TWO: END USER CERTIFICATION Export Control Law Compliance” of the Agreement (whereby such appendices shall control in the event of conflicting or contrary terms in the Acceptable Pre-existing Contract or Purchase Order), shall together govern the purchase of any and all products listed on the Site. In the event an Acceptable Pre-existing Contract is not in place or has not been fully executed by the applicable parties prior to the sale, the terms and conditions set forth in the Agreement shall govern the purchase of any and all products listed on the Site. All Purchase Orders issued by Client are further subject to Company’s acceptance of i) such Purchase Order, and ii) the terms and conditions set forth in any Acceptable Pre-existing Contract, both of which can and may be rejected by Company in its sole discretion. In addition, prior to finalizing any sale(s), Company must have extended credit to Client in an amount sufficient to cover the full purchase amount of such sale(s).
The provision of products (sale) by Company is subject to the following General Terms and Conditions:
“Affiliate” or “Affiliates” of a Party means an entity that controls or is controlled by that Party, or an entity that is controlled by the same entity that controls said Party (it being understood that the term “control” as used in this sentence means having the right to decide, directly or indirectly, the manner of exercising more than 50% of the votes in a general meeting of an entity or more than 50% of the votes in a meeting of the executive body of an entity).
“Agreement” means these General Terms and Conditions which constitutes a binding contractual relation between the Client and Company.
"Article" means the numbered articles/sections of this Agreement.
"Business Day" means a day (other than a Saturday, Sunday or public holiday) when banks in [London] are open for normal over the counter business.
"Cancellation Charges" means 20% of the catalog or other list price of the Product, as set forth on the Site, and 100%]of the cost of special ordered Products or such other percentages Company may notify in writing from time to time.
“Claim” or “Claims” means any and all claims (including third party claims), demands, causes of action, judgments, awards, damages, losses, costs, expenses and liabilities of any kind and character.
“Client” means the business, company, entity, or person, to which the Products are to be sold under this Agreement, as further identified the Order.
“Company” means Hexacom a Division of Schlumberger Technology Corporation.
"Country of Incorporation and/or Residence" means the country designated by Company as its Country of Incorporation and/or Residence.
“Country of Supply” or “Country of Delivery” means the country where the Products are delivered as detailed in the Order.
“Country of Ultimate Destination/Use” is the country where the Products are utilized, consumed, or deployed by Client to be further specified in the Order.
"Delivery Point" means Company's premises as detailed on the Order or such other location as Company may specify prior to delivery.
"Documents" means all drawings, designs, specifications, plans and particulars of weights and dimensions or other information.
"Expenses" means any out of pocket costs incurred by Company including (without limitation) packaging, carriage, freight and handling charges, insurance, currency conversion and banking charges applicable to the payment method used, value added tax or any other applicable sales tax in the country in which Company is incorporated or resident.
"Force Majeure" means any event which is reasonably unforeseeable and reasonably beyond the control of the Party affected and cannot be remedied by the exercise of reasonable diligence, including (without limitation) act of God, war (declared or undeclared) terrorist attack, riot, trade dispute, labor disturbance, epidemic, accident, breakdown of plant or machinery, fire, flood, adverse weather, accidental or malicious damage, and any prohibition or restriction by any government or other legal authority which affects this Agreement,
“Group” means a Party, its Affiliates, its co-venturers (if any), its contractors and its subcontractors (of any tier), and its and their respective employees, officers, directors, representatives, agents and invitees.
"Intellectual Property Rights" means all trademarks or trade names (common law or registered), patents or patent applications, mask works, copyright (published or unpublished), trade secrets, know-how, designs, methods, processes, work flow, inventions, database rights, topography rights, utility models, domain names and any other intellectual property rights of a similar nature (whether or not registered) subsisting anywhere in the world in or associated with the Products.
"Order" means the purchase entered into by the Client on Company’s Site to purchase the Product(s), or, as applicable the documentation thereof.
“Party” and “Parties” means Client and/or Company, individually or collectively as the context requires and includes their representatives, permitted assignees and successors.
“Products” or “Product” or “Product(s)” means the products or equipment sold by Company as detailed in the Order.
“Site” means the website on which the Order is placed.
“Trade Control Laws” shall mean all applicable laws concerning the import, export or re-export of goods, software or technology, or the direct product thereof, including, but not limited to, applicable customs regulations, Council Regulation (EC) No. 428/2009, any sanction regulations issued by the Council of the European Union; the International Traffic in Arms Regulations ("ITAR"); the Export Administration Regulations ("EAR"); and the regulations and orders issued and/or administered by the U.S. Department of the Treasury, Office of Foreign Assets Control, in relation to export control, anti-boycott and trade sanctions matters, (as amended from time to time).
2. ORDER OF PRECEDENCE
This Agreement applies in place of, and prevails over, any terms or conditions (i) contained or referred to in Client’s acceptance of Company’s authorized offer or quotation, or any correspondence, other contracts (previous, current or subsequent) entered into by Client and Company or between Client and any third party, which may have been applicable to the subject matter hereof, or (ii) implied by trade, custom, practice or course of dealing. Company may amend and/or supplement this Agreement at any time by posting the amended and/or supplemented terms on Company’s Site and providing the date of posting. All amended and/or supplemented terms shall automatically be effective and deemed to be incorporated into this Agreement when posted on Company’s Site.
3. ACCEPTANCE BY CLIENT OF THIS AGREEMENT
3.1 Product prices are determined on the basis of the limited liability set out in this Agreement and Client’s release and indemnification of Company from certain liabilities and responsibilities as set out in this Agreement. The Client’s silence, acceptance of, receipt of or use of the Product(s) constitutes its acceptance of this Agreement, as it may be thereafter amended or supplemented pursuant to Article 2. Continued use of the Site by Client after the posting date of any amendment or supplement to this Agreement as set forth in Section 2 shall constitute Client’s acceptance of such amendment or supplement.
3.2 All prices, discounts, and promotions posted on the Site are subject to change without notice. The price charged for a Product will be the price advertised on the Site at the time the Order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in Client’s Order confirmation email. Price increases will only apply to Orders placed after the time of the increase.
This Agreement shall be valid and effective until delivery of the Products by Company and thereafter for the period to cover (i) inspection of the Products by Client; and/or (ii) any applicable warranty period, subject to Article 19.10 herein.
5. LIMITED WARRANTY
5.1. Company warrants that the Product(s) manufactured by Company shall be free from all material defects in material and workmanship for a period of 3 (three) months from the date of delivery as defined in Article 9. Company’s sole liability and Client’s exclusive remedy under this warranty shall be limited, at Company’s sole option, to the (i) replacement; (ii) repair either by Company or a third party nominated by Company; or (iii) refund of an equitable portion (such portion to be determined at the sole discretion of Company) of the purchase price of the part (or parts) or Products, which prove(s) to be materially defective in material or workmanship within this period, provided that Client gives Company immediate written notice upon discovery of any material defect or material failure, and satisfactory proof thereof. Any defective part or parts or Products must be returned to an authorized Company location or to an authorized service center for inspection, and Client shall prepay all freight charges. Should Company elect in its sole discretion to replace the defective part or parts or Products, Company shall deliver such replacements to Client, freight prepaid, to the destination provided for in the original Order. Products returned to Company for which Company provides replacement under this warranty shall become the property of Company. Client shall be liable for all and any additional Expenses incurred by Company to return, if practicable, Products found not to be defective, unless Client chooses to place a new Order for same pursuant to the terms of this Agreement; likewise, Client may elect to place a new Order for a replacement Product that is found to be defective because of improper use by or on behalf of Client.
5.2. This limited warranty does not apply to (i) normal wear and tear; (ii) sub-standard performance or damage caused by adverse, abnormal or unusual conditions in the field of use, including (without limitation) well conditions, abrasive materials, corrosion due to aggressive fluids, lightning, and/or improper voltage supply, (iii) substandard performance or damage caused by mishandling or misapplication; (iv) incorrect specifications provided by Client associated with selection of the applicable Product; (v) use of a Product after Client, its Group, or any other person or entity using the applicable Product, has knowledge of, or should have had knowledge (acting reasonably) of a defect; (vi) Products that have been modified at Client’s request or used in combination with product(s) not provided by Company; (vii) Products which are (a) not used, stored, maintained or installed in accordance with the standards and/or instructions published or otherwise provided by Company; or (b) are otherwise improperly used, stored, maintained or installed by the Client (or its Group) or a third party; (viii) any situation arising from, or relating to, breach by Client of its obligations pursuant to this Agreement; (ix) willful damage; or (x) the negligence of Client (or its Group) or that of the Client's (or its Group’s) agents, employees or other representatives or third parties acting on behalf of or under the instruction of the Client (or its Group). Company’s obligations under this warranty shall not apply to any Product which (i) is normally consumed in operation (for example, anodes, explosives, shaped charges or screens), or (ii) rapidly wearing Products or a Product that has a normal life inherently shorter than the warranty period stated herein.
5.3. In the event that any Product is altered or repaired by Client or its Group or any person other than Company’s authorized service representative, without prior written approval by Company, or in the event that Client sells or leases any Products, all warranties are void. Products supplied, but not manufactured, by Company are warranted only to the extent of and by the original manufacturer’s warranty. A new warranty period shall not be established for any Product repaired or replaced under warranty. Such items shall remain under warranty only for the remainder of the warranty period on the original Products.
5.4. Except for the product warranty set forth in Article 5.1, Company makes no warranty whatsoever, whether express or implied, through course of dealing, course of performance, usage of trade or otherwise, with respect to Products purchased through the Site, including any warranty of merchantability, fitness for a particular purpose, title or non-infringement.
6. LIMITATION OF LIABILITY
6.1 The total liability of Company and its Group, cumulatively, with respect to all Claims, whether in contract, tort (including negligence, sole or concurrent, misrepresentation) or otherwise, arising out of, or connected with, the manufacture, provision, delivery, repair, replacement or use of any Products, or the performance by Company of any of its other obligations under this Agreement, shall not exceed the consideration (excluding the Expenses) paid by Client hereunder for the Product or the part of the Product which is subject to a Claim prior to the date upon which the cause of such action arose.
6.2. Company shall not be liable whether in tort (including negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, business interruption or Company's failure to supply, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses ("Consequential Loss") however arising in relation to the Product(s) and/or this Agreement.
6.3 Unless expressly agreed in writing by Company, all Documents submitted by Company are indicative only and Company shall not be liable for any deviation therefrom and Company does hereby disclaim any warranty (express or implied), (i) of the merchantability of the Product(s, (ii) that the Product(s) shall be fit for the Client's particular purpose; and (iii) of any advice, representation, recommendation or analysis of the Product by Company is accurate, complete or correct. Company shall not be liable for (a) any errors, omissions or other defects in any Documents not prepared by Company; or (b) any representation, advice, recommendation or analysis. The client shall indemnify Company against any Claim arising (directly or indirectly) out of any Documents supplied by or on behalf of the Client.
6.4 Company reserves the right at any time to change or modify the design and construction of the Products. This right shall not impose any obligation on Company to install, replace, or implement such changes or modifications on any Product(s) previously or subsequently sold to Client.
6.5 In no event shall Company be responsible for retrieving, dismantling, and/or removing Products (including but not limited to damaged or defective Products) from the field of use, unless provided for in a separate services agreement with appropriate compensation and subject to Company's standard terms and conditions for the provision of such services.
7. LIABILITIES AND INDEMNITIES
7.1. Subject to Article 7.2, Client shall defend, indemnify and hold Company and/or its Group harmless from and against any Claim arising out of or related to (i) death of, injury to, any person; (ii) loss of, or damage to any property; arising out of, or in connection with, the use, application, or results, of the Products provided, manufactured, assembled, installed, repaired, maintained, replaced or handled by Company; (iii) any Claims asserted against Company that are directly or indirectly associated with Consequential Loss in accordance with Article 6.2 hereof; (iv) any breach of Client’s obligations under this Agreement, including, but not limited to Client’s breach of warranty and/or Client's noncompliance with applicable Trade Control Laws and regulations; (v) the unloading and/or clearing of the Products, including any demands from statutory or other government authority; and (vi) any breach of Article 13 hereof.
7.2. Each Party shall defend, indemnify and hold the other Party and/or its Group harmless from and against any Claim arising out of (i) death of or injury to its own personnel and/or (ii) loss of or damage to its own property and that of its Group, provided that Client shall, regardless of whether title to the Products vested in Client, be liable for any loss of or damage to the Products once delivered to Client (as set out in Article 9).
7.3 Without limitation to the above paragraphs of this Article 7 (and notwithstanding anything herein to the contrary), Client shall defend, indemnify and hold Company and its Group harmless from and against any and all Claims (including third party Claims) in respect of:
a) loss of or damage in any field of use, including (but not limited to) a well, geological formation, strata and/or reservoir and the cost of re-drilling the well;
b) loss, damage, injury and/or death resulting from a blowout, crater, an explosion, catching fire or any well in any manner getting beyond control;
c) killing or bringing under control of any well;
d) loss of stored products from any property of Client and/or its Group or contamination of said products (manufactured or otherwise) resulting from a), b) or c) above:
e) the use, handling, custody, storage, transportation, treatment, or disposal of chemicals, explosives, hazardous or radioactive materials;
f) loss, damage, injury and/or death resulting from pollution (including any environmental pollution) and/or contamination emanating from a), b), c), d) or e) above including all cost of containment, clean-up and disposal;
g) loss or damage to property, pipelines, platforms, production or drilling facilities, vessels, rigs, jack up barges, pipelines and/or installations resulting from a), b), c) or e) above including any downtime or remediation/recovery time; and/or cost of re-completion and re-running of services or replacement of any installation;
h) loss, damage (including the cost of containment, clean-up and disposal), injury and/or death resulting from radioactive contamination (including environmental contamination); and/or
i) loss, damage, injury and/or death suffered by any third party resulting from any of the above events.
7.4. Subject always to Article 6 hereof, it is the express intent of the Parties that the provisions of this Article 7 shall exclusively govern the risk allocation and indemnities between the Parties and shall prevail over any inconsistent provisions contained in (i) the remainder hereof, (ii) other terms and conditions applicable hereto and accessible on the Site, and (iii) over any applicable laws and regulations with which they may conflict, to the extent legally permissible.
7.5. Subject always to Article 6 hereof, the Parties formally express and agree that when an indemnity is granted (or a liability assumed) by either Party herein, or when a liability is excluded herein, said indemnity (or assumption of liability) or exclusion of liability shall, unless expressly stated otherwise, apply without limit and without regard to the cause thereof, including pre-existing conditions (whether such conditions be patent or latent), unseaworthiness of any vessel, breach of duty, statutory common law or otherwise, breach of representation or warranty (express or implied), strict product liability, tort, breach of contract, any theory of legal or equitable liability, negligence of any person(s) including that of the Party indemnified, whether such negligence be gross (which for the purpose of this Agreement means willful, wanton or reckless conduct, carelessness or omission as constitutes in effect an utter disregard for harmful, foreseeable and avoidable consequences), sole, concurrent, active or passive.
8. TITLE AND RISK
8.1. Title to, risk of and responsibility for the Product(s) shall pass to Client at the time and place of delivery in accordance with Article 9 hereof.
8.2. The time, method, place or medium of payment shall not in any way limit Company’s rights in and to a Product until payment has been received in full on any Order relating to such Product.
9. DELIVERY, RETURNS AND ORDERS
9.1. Delivery of the Product(s) shall take place at the Delivery Point.
9.2 Acceptance of any change to the Delivery Point required by the Client shall be at Company's sole discretion and must be agreed in writing by both Parties. The Client shall be liable for (i) all and any additional Expenses incurred by Company; and (ii) arranging for suitable transport to the Delivery Point for the Products together with all necessary documentation in accordance with the provisions of this Agreement.
9.4. Partial deliveries shall be permitted. Delivery dates are approximate and dependent on Client providing Company with all monies, guarantees, documentation and information needed to permit Company to immediately proceed with work and without interruption. Company shall not be liable for any damage or loss whether arising directly or indirectly out of any delay in delivery.
9.5. The Client shall be responsible for clearing the Products delivered. Delivery shall be taken by Client within 14 (fourteen) days of the date of a written request sent to the Client to take delivery of the Products ("Shipment Notice").
9.6 If for any reason any portion of the Products cannot be delivered when ready due to any cause, Company may invoke its rights under Article 11. In such event, (i) Company’s delivery obligations shall be deemed fulfilled and risk of loss/damage to the Products sold shall thereupon pass to Client, (ii) any amounts otherwise payable to Company shall be payable upon presentation of certification as to such cause, and (iii) all expenses incurred by Company, such as for preparation for and placement into storage, handling, inspection, preservation and insurance, shall be immediately payable by Client upon submission of Company’s invoices therefore.
9.7. Subject to Article 9.9 hereof, the Client may, by giving written notice to Company, cancel an Order at any time prior to the date the Order processing confirmation is sent to Client (“Order Processing”). Client’s notice to Company shall be given in the most expeditious means possible as set forth under Article 19.2 and shall be confirmed within (5) five days thereafter, in writing by registered mail at: 1325 South Dairy Ashford Drive, Houston, Texas 77077, Attention: Hexacom Customer Service.
9.8 Company may choose not to accept Orders at its sole discretion, even after a confirmation email is sent with Order number and details of the items ordered.
9.9 Unless Company requires payment upon its acceptance of the Order, Client shall pay in full the price listed on the Site for all Products upon shipment or when the Product(s) are retrieved from the Delivery Point on behalf of Client. In the event of cancellation subsequent to Order Processing, no refunds shall be provided, subject to Article 14.4. In the event of cancellation subsequent to Company’s acceptance of the Order and prior to Order Processing, Company reserves the right to assess Cancellation Charges and as such Client acknowledges and authorizes Company to charge such amounts against Client’s credit card.
9.10 Client acknowledges and agrees that delivery dates provided in any Shipment Notice or otherwise provided by Company are approximate only and, unless otherwise expressly agreed to by Company, time is not of the essence for delivery of the Products.
10. FORCE MAJEURE
10.1 The date on which Company’s obligations are to be fulfilled shall be extended for a period of time equal to the time lost by reason of any delay arising directly or indirectly from a Force Majeure event or failure from Client to timely provide information, materials, equipment or transportation or any item or service to be furnished by Client, or any other cause beyond Company’s reasonable control, or otherwise.
10.2 If any circumstances relied on by either Party for the purposes of this Article 10 continue for more than twenty Business Days the other party shall be entitled to terminate any Order immediately upon serving written notice to that effect to the other Party; provided, however, that if any Product was shipped under such Order prior to the Force Majeure event, the Order shall remain in effect with respect to such Product only.
11.1.. Unless otherwise allowed by Company and expressly agreed to by Company, Company only accepts the approved credit cards listed in the Site for all purchases. Client represents and warrants that (i) the credit card information supplied to purchase Products is true, correct and complete, (ii) Client is duly authorized to use such credit card for the purchase, (iii) charges incurred by Client will be honored by Client’s credit card company, and (iv) Client will pay charges incurred by Client at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Company’s Site at the time of the Order.
11.2. All amounts for payment referred to in this Agreement shall be interpreted as being amounts exclusive of value added tax, any similar tax in another jurisdiction or any tax that replaces such sale taxes. Any such tax payable in relation to any such amounts shall be paid in addition to those amounts. If the Client is required under any applicable law to withhold or deduct any amount from the payments due to Company, the Client shall increase the sum it pays to Company by the amount necessary to leave Company with an amount equal to the sum it would have received if no such withholding or deduction had been made.
11.3. All amounts due to Company under this Agreement shall become immediately due if this Agreement is terminated or novated despite any other provision.
11.4 The Client shall make all payments due under this Agreement without any deduction by way of set-off, counterclaim, discount or otherwise.
11.5 Interest shall be payable on overdue accounts at the rate of two per cent (2%) over LIBOR base rate to run from the due date for payment until receipt by Company of the full amount.
12.1. Company shall be responsible for any and all taxes applicable in its Country of Incorporation and/or Residence. As a result of the nature of this Agreement, Company shall not be liable or responsible for any taxes in the Country of Supply, or the Country of Delivery or any subdivisions thereof. The prices, rates and fees agreed by the Parties for the Product(s) are net of any amounts in respect of taxes levied on revenue, profits or a combination thereof, including but not limited to, corporate income tax, branch profit tax or other form of revenue or profits-based tax, withholding tax, sales tax, use tax, and value added tax that may be imposed in the Country of Supply on Company. Any and all such taxes referred to above, if imposed in Country of Supply or any subdivision thereof will be the Client’s responsibility and liability, either directly or indirectly as a recharge from Company. Client shall indemnify and hold Company harmless from and against any and all Claims and demands with respect to the taxes referred above.
12.2. In the event that any of the taxes referred above have to be withheld by the Client, and paid over to the relevant authorities, Client agrees to compensate Company for this tax withholding by allowing a gross-up of prices or by paying the withholding tax directly to the relevant authorities, such that in either case the net amount received by Company shall be equal to the amounts agreed under this Agreement. In addition, Client shall pay these taxes directly to the relevant Authority, and provide Company with receipts evidencing payment, within 30 days following the date of payments to the relevant authority.
12.3. Client shall pay all taxes, duties, and fees assessed or levied on the Product(s) supplied by Company under this Agreement and imported by the Client into the Country of Supply, including, without limitation, sales tax, use tax, property tax, value added tax, license fees, clearing agent fees, levies, import duties and tariffs including government and local authority charges or charges levied by similar bodies arising out of or in connection with this Agreement, imposed by the Country of Supply or any subdivision thereof. Client shall indemnify and hold Company harmless from and against any and all Claims and demands with respect to the taxes, duties and fees referred to above.
12.4. Notwithstanding any other Article of this agreement, in case of any changes in laws or in the legislation of the Country of Supply, or in the interpretation of such legislation, including but not limited to taxes or customs and excise duties of whatever nature, after the effective date of this Agreement which results in a tax liability for Company from the supply of product(s) under this Agreement, then Client shall reimburse Company for any such taxes which are paid by Company or it will settle such taxes directly with the relevant authority.
13. ANTI BRIBERY
13.1 The Parties shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including (but not limited to) the Bribery Act 2010 and the FCPA. Neither Party shall engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK.
13.2 The Client herby undertakes that it shall promptly report to Company any request or demand for any undue financial or other advantage of any kind received by the Client in connection with the performance of this Agreement.
13.3 Breach of this Article 13 shall be deemed a material breach.
14. INTELLECTUAL PROPERTY
14.1. The Client acknowledges that the Intellectual Property Rights are the property of Company and nothing in this Agreement shall be construed as conferring any license or granting any rights in favor of the Client in relation to the Intellectual Property Rights and that any reputation and/or goodwill in any trade mark affixed or applied to the Products shall accrue to the sole benefit of Company. Company owns all rights to the Intellectual Property Rights embodied in the Products. Company does not transfer any ownership rights in such Intellectual Property Rights to the Client. This Article 14.1 shall survive termination of this Agreement (howsoever caused).
14.2 The Client hereby undertakes and warrants that it shall not repackage the Product(s) and/or remove any copyright or trade mark notices, confidential or proprietary legends or identification from the Products. This Article 14.2 shall survive termination of this Agreement (howsoever caused)
14.3. Company will not be liable for Intellectual Property Rights infringement that arises; (i) out of a Client’s use of Products in combination with products or services not provided by Company; (ii) where Products have been specially modified, designed and/or manufactured to meet Client’s specifications; (iii) out of unauthorized additions or modifications to Product(s); or (iv) where the Client use of Product(s) does not correspond to Company published standards or specifications.
14.4. Excluding Claims within Article 14.3, if Client receives a Claim that any Product or part thereof directly infringes a patent or copyright or trade mark issued under the laws of the Country of Supply or Country of Delivery or intended destination (as identified by Client in the Order), Client shall notify Company promptly in writing and give Company information, assistance and exclusive authority to evaluate, defend and settle such Claim. Company shall then at its own expense and option (i) procure for Client the right to use such Product, (ii) replace or modify such Product(s) to avoid infringement, or (iii) remove it and refund the purchase price less a reasonable amount for depreciation. Provided such prompt notice has been given by Client, should any court of competent jurisdiction hold such Product(s) to constitute infringement, Company shall pay any costs and damages finally awarded on account of such infringement and, if the use of such Product(s) is enjoined, Company shall take at its option one or more of the actions under (i), (ii) or (iii) above. With respect to any Product(s) not manufactured by Company, only the indemnity (if any) given by the original manufacturer thereof shall apply.
14.5. Where the Products contain any software, such software shall be provided in accordance with the specification of the Product(s) and subject to the applicable license to use such software. The Client hereby undertakes and warrants that it shall not attempt to copy, modify, duplicate, attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software.
14.6 The information collected with respect to any transaction conducted through Company’s Site may be used to enable Company’s reporting capability and to allow for record keeping and tracking of data, for use as account information in Company’s system, and for other similar purposes appropriate to the operation of Company. This information is supplied at the user’s discretion and shall be property of Company.
14.7 The rights and obligations of the Parties with respect to the Intellectual Property Rights are solely and exclusively as stated herein.
15. CONFIDENTIAL INFORMATION
Client acknowledges that the successful operation of the Products may require repair or the like by Company’s authorized representatives who possess valuable and confidential information, data, and know-how relating to the manufacture, tolerances, capabilities and operation of the Products or otherwise concerning the business and affairs of Company (“Confidential Information”). Client also acknowledges that any disclosure of the Confidential Information to any third party may cause substantial damage to Company. Therefore, Client agrees and hereby undertakes that (i) it shall keep confidential all Confidential Information (written or oral) and shall take all steps necessary to ensure such confidentiality is maintained; and (ii) any repair work or the like performed by Company or its authorized agent at Client’s locations will be done only under circumstances where the Confidential Information is, in Company’s sole determination, adequately protected.
16.1 Company may terminate this Agreement immediately upon serving notice to that effect in the event that (i) the Client suffers or threatens to suffer an insolvency event or any event analogous to an insolvency event in any jurisdiction in which the Client is incorporated, resident or carries on business; or (ii) the Client commits a material breach of any of its obligations under this Agreement, which material breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of twenty Business Days after being notified in writing to do so; or (iii) the Client repeatedly breaches of its obligations or the terms of this Agreement in such a manner as to reasonably justify, in Company's sole opinion, that the Client's conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement.
16.2 Company may terminate this Agreement when Company has, in the opinion of Company, reasonable grounds to do so, (which reasonable grounds shall include (but not be limited to) a change of control of the Client or other change in the financial circumstances of the Client), upon giving the Client not less than [twenty] Business Days prior written notice.
16.3 On termination or expiry of this Agreement for any reason and subject as otherwise provided in this Agreement to any rights or obligations that have accrued before termination, neither Party shall have any further obligation to the other under this Agreement provided always that the indemnities granted by the Client in favor of Company including those in Articles 6.3, 7, 12.1, 12.3, 14.1 and 18.2 of this Agreement shall survive termination of this Agreement (howsoever caused).
17. CAPACITIES OF PARTIES
17.1 Company acts solely as an independent contractor in providing the Products and neither it nor its personnel are deemed to be the agents or employees of Client nor shall anything in this Agreement create or be deemed to create a partnership or joint venture.
17.2 Client acknowledges and certifies that it is not an agency of any federal or state government, or other political subdivision thereof, entitled to sovereign immunity. Otherwise, disclosures of such entitlement must be made to Company prior to entering into any transaction for Products under this Agreement.
18. GOVERNMENTAL AUTHORIZATIONS
18.1. Client warrants and undertakes that the Client is responsible for obtaining and maintaining, at its own costs, such import, export and other licenses and all other consents, licenses, permits and authorizations ("Authorizations"), required for the performance of this Agreement, even though any such Authorizations may be applied for by Company on behalf of the Client.
18.2 The Client hereby indemnifies and holds harmless Company from and against any and all claims, costs, expenses, losses or liabilities arising from (directly or indirectly) (i) a breach of the warranty provided in Article 18.1 hereof; or (ii) the delay, denial, revocation, restriction or failure to renew such Authorizations; or (iii) any breach of such Authorizations.
18.3 The Client shall not be relieved of its obligations under this Agreement, including the obligation to pay Company, in the event that any Authorization is delayed, denied, revoked, restricted or not.
18.4. Any sale hereunder shall at all times be in strict conformity with all relevant export control laws and regulations, including but not limited to, as applicable, the laws of the United States government. Therefore, pursuant to said applicable laws and regulations, Client agrees that it shall not make any disposition, by way of trans-shipment, re-export, diversion or otherwise, of the Products purchased from Company, except as said laws and regulations may expressly permit, and that no such disposition or transfer will be made other than to the ultimate country of designation specified on Client’s order and/or as declared as the Country of Ultimate Destination/Use by Company.
18.5. Client acknowledges and undertakes that it shall act reasonably in determining whether the export of the Products, are compliant with applicable trade/export regulations, and in case of a reasonable and justifiable determination to the contrary, the Parties shall seek in good faith to find a mutually acceptable solution to minimize such adverse effects. In the absence of a mutually acceptable solution, each Party or its affiliated companies, reserves the right to terminate this Agreement, and the other Party agrees that it shall have no legal cause of action, and hereby waives any right to assert the same. The Client hereby indemnifies Company and holds the same harmless from any and all costs, Claims, liabilities, damages, actions, and expenses whatsoever and howsoever arising (including without limitation special, indirect, incidental, consequential or exemplary loss or damage including loss of profit, anticipated profit, business contracts or goodwill) which Company or its group may suffer or incur in any jurisdiction that arise (either directly or indirectly) from the export of the product(s).
18.6. In the event that at the time when this Agreement comes to existence or any moment thereafter, any laws, regulations or restrictions of any kind imposed by any government or any organization of which a government is a member, substantially adversely affect a Party or its affiliated companies as a direct result of the performance of this Agreement, the Parties shall seek in good faith to find a mutually acceptable solution to minimize such adverse effects. In the absence of a mutually acceptable solution, each Party or its affiliated companies, reserves the right to terminate this Agreement, and the other Party agrees that it shall have no legal cause of action, and hereby waives any right to assert the same.
19.1 All quotations of Company are subject to change at any time prior to acceptance of Client’s Order, and subject to Company’s discretion, may expire thirty (30) days from the date thereof.
(a) To Client. Company may provide any notice to Client under this Agreement by: (i) sending a message to the e-mail address provided by Client or (ii) posting to the Site. Notices sent by e-mail will be effective when Company sends the e-mail and notices Company provides by posting will be effective upon posting. It is Client’s responsibility to keep its e-mail addresses current.
(b) To Company. To give Company notice under this Agreement, Client must contact Company by email as indicated on the Site. Company may update its information for by posting a notice on the Site.
19.3. A person who is not a party to this Agreement shall not have any rights to enforce its terms except that any member of the Company Group may enforce any of Company's rights or perform any of Company's obligations under this Agreement at the sole discretion of Company.
19.4. Any provision or term of this Agreement which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of this Agreement.
19.5 Failure by either Party to exercise or enforce any rights under this Agreement shall not be deemed to be a waiver of any such rights nor operate so as to bar the exercise or enforcement of such rights at any later time or times.
19.6 Client’s acceptance of this Agreement has not been induced by any representations, statements, warranties, or agreements other than those herein expressed. This Agreement constitutes the entire agreement between the Parties, oral or written, relating to the subject matter hereof.
19.7 Company may assign, license or subcontract to any of its Affiliates all or any part of its rights and obligations under this Agreement without Client’s consent. Client may not assign or in any way dispose of its rights or obligations under this Agreement without the prior written consent of Company.
19.8. All headings are for ease of reference only and shall not affect the construction of this Agreement. References to the singular shall include the plural and vice versa. References to the term “including” shall be construed as “including without limitation”.
19.9. The Client hereby warrants and undertakes that it shall be solely responsible for any pollution and/or environmental damage or damage of any kind caused by or arising from the operation or use of Product(s).
19.10 The provisions of this Agreement which by their nature are intended to survive the termination or expiry of this Agreement (including, but not limited to Articles 6 and 7) shall remain in full force and effect after said termination or expiry.
19.11 In the event of any conflict between the English text of this Agreement and any translation into other languages, the English text shall prevail.
19.12 This Agreement shall be governed by, and construed in accordance with, the laws of the state of Texas (for users located in the United States), or the laws of the Province of Alberta (for users located in Canada), or the laws of England and Wales (for users located outside the United States and Canada), excluding any conflict of laws principle that would refer to the law of another jurisdiction. Any dispute which cannot be settled amicably shall be resolved by arbitration in Houston, Texas, USA, in accordance with the commercial arbitration rules of the American Arbitration Association (for users located in the United States), or in Calgary, Alberta, in accordance with the arbitration rules of the Alberta Arbitration Act (for users located in Canada) or in London, England, in accordance with the arbitration rules of the International Chamber of Commerce (for users located outside the United States and Canada).. The English language shall be used throughout arbitral proceedings, and the award shall be final and binding upon the Parties.
19.13 PUBLICITY. Unless required by applicable laws, rules or regulations, neither party shall, or otherwise permit or cause any member of its Group to, issue or publish any press releases or make any public statements or publicize any information with respect to (i) the contents of these General Terms and Conditions, (ii) performance of the products sold under the Contract, and/or (iii) any transaction or occurrences arising as a result of the sale, without the prior written approval of the other party. Furthermore, the parties agree to confer with each other prior to any publication of any such information and to set forth such agreement in a separate writing.
APPENDIX ONE: HIGH RISK PRODUCTS TERMS AND CONDITIONS
The provision of Products which may have a High Risk (as hereinafter defined) is subject to Company's General Terms and Conditions and the following High Risk Products (as hereinafter defined) Terms and Conditions:
"Chemicals" means any chemicals and Fluids, used or unused, or considered as waste or by-products, cuttings or carvings or other hazardous wastes (as defined pursuant to applicable law) resulting from, or incidental to the Products.
"Dual Use" means any Product or technology embedded within a Product which is intended for use as civilian goods but which may be used or adapted for use for military purposes.
"Explosives" means any material which is capable of causing instantaneous release of gas, heat and/or pressure.
"Fluids" means chemicals, emulsions or chemically treated fluids, including but not limited to drilling fluids, completion fluids, displacement fluids, wellbore fluids, wellbore treatments, stimulation fluids whether water, oil or synthetic based.
"High Risk Products" means any Products (as defined in the General Terms and Conditions) which have (i) a Dual Use; and/or (ii) Chemicals; and/or (iii) Explosives.
2. RESERVED RIGHTS
2.1 Company reserves the right to refuse to sell Products where Company has grounds for suspicion or has been informed by a competent authority of any grounds for suspicion that the High Risk Products may be intended (in whole or in part) to be reverse engineered, decompiled or otherwise broken down into parts.
2.2 Company reserves the right to refuse to sell Products where sanctions and/or embargoes have been implemented by the Unite States or where Company has grounds for suspicion or has been informed by a competent authority of any grounds for suspicion that the High Risk Products may be intended (in whole or in part) to be used for a military end use and/or and the Country of Supply/delivery or the Country of Ultimate Destination/Use is subject to, or becomes subject to an arms embargo imposed by (i) a decision or common position adopted by the Council of the European Union; or (ii) a decision of the OSCE; (iii) or (iv) imposed by a binding resolution of the Security Council of the United Nations.
2.3 Company reserves the right to refuse to sell Products where Company has reasonable grounds to believe that the sale of High Risk Products would adversely affect (i) the business and affairs of Company; or (ii) the ability of Company to comply with all relevant government laws and statutes.
2.4 Company reserves the right to refuse to sell High Risk Products or to terminate this Agreement with immediate effect upon written notice in circumstances where Company has received a warning letter sent on behalf of any national government identifying a failure to comply with any export control legislation or Authorization.
3. OBLIGATIONS OF CLIENT
3.1 The Client hereby warrants and undertakes that it shall not in any way, directly or indirectly or by act or omission do anything that would affect any Authorization granted to Company.
3.2 The Client warrants and undertakes that it shall (i) not use the Products for any purpose connected with chemical, biological or nuclear weapons or missiles capable of delivering such weapons; (ii) not re-export or otherwise resell or transfer the High Risk Products if it is known by the Client or suspected by the Client that the High Risk Products are to be used for such purposes, (iii) not violate any Trade Control Laws applicable to the Products. The Client will provide an End-User Statement as per Appendix Two, and hereby warrants that the information in this End-User Statement will be complete and accurate.
3.3 The Client hereby warrants and undertakes that it shall be solely responsible and liable for (i) the safe disposal, dismantle and/or removal of High Risk Product(s) for whatever reason, including (but not limited to) repair or replacement of High Risk Product(s) for whatever reason; and (ii) any pollution and/or environmental damage or health and safety risk arising from such disposal or dismantle or removal of High Risk Product(s) for whatever reason.
3.4 Any used Product planned to be returned to the Company's storage facility, service center or field site will, where applicable, be tested for Technically Enhanced Naturally Occurring Radioactive Material (TENORM) by the Client prior to back loading from the wellsite. This shall be done irrespective of ownership of the Product and regardless of whether Company or a third party uninstalls the Product.
3.5 Any Product found to be contaminated by TENORM is the responsibility of Client and must be back loaded to the Client’s nominated waste management contractor for decontamination.
3.6. Once decontaminated, Product shall be transported to the Company’s storage facility or plant. Appropriate documentation from Client’s nominated waste management contractor certifying decontamination shall be provided to Company.
3.7 All costs associated with decontamination, storage, transportation, disposal of TENORM contaminated Product shall be to Client’s account.
3.8 Moreover, in the event that the Product becomes contaminated by TENORM to a level where it is no longer economical to clean or decontaminate, Client shall take custody of such Product and pay Company the full cost of such Product.
4. HANDLING AND TRANSPORT
4.1 It shall be the sole responsibility of the Client (i) to ensure that all information relevant the High Risk Products, including safety information and MSDS (material safety data sheet), is complied with; and (ii) to make the necessary arrangements for the safe storage, handling, transport and use of the High Risk Products; and (iii) to ensure all Authorizations for such High Risk Products are obtained and maintained.
4.2 The Client hereby acknowledges and agrees that handling, transportation, treatment or disposal of all Chemicals, including upon their return to the surface of land or sea from below the rotary table is the sole responsibility of the Client. The Client is the sole owner of the Chemicals and Fluids and Explosives. In no event shall Company be considered the generator of Chemicals, pollution or environmental damage, irrespective of any handling, transportation, treatment or disposal thereof provided by Company.
APPENDIX TWO: END USER CERTIFICATION
Export Control Law Compliance
1) Client hereby certifies that products acquired from and/or products serviced by Company will not be exported, re-exported, sold, transferred, diverted, or otherwise disposed of in violation of all applicable laws concerning the import, export or re-export of goods, software or technology, or the direct product thereof, including, but not limited to, applicable customs regulations, Council Regulation (EC) No. 428/2009, any sanction regulations issued by the Council of the European Union; the International Traffic in Arms Regulations ("ITAR"); the Export Administration Regulations ("EAR"); and the regulations and orders issued and/or administered by the U.S. Department of the Treasury, Office of Foreign Assets Control,in relation to export control, anti-boycott and trade sanctions matters, (as amended from time to time).
2) Client hereby certifies that the products acquired from and/or products serviced by Company under any and all Orders will be used by Client as end-user for the intended end-use (s).Client shall provide a detailed description of the intended end use(s) and the End Destination in the applicable Order if outside the United States. Client shall include the rig name (if applicable), the field (if applicable), and final location (including the country where the rig or goods will be going).
3) Client hereby acknowledges that Company’s U.S. operations are prohibited from and/or may be penalized for participating in or supporting international boycotts of certain foreign countires, including Israel, if such boycotts are not sanctioned by the United States government.
4) Client certifies that no payment or offer of payment has been made to a foreign official to induce that official to influence any government act or decision to assist in obtaining or retaining business associated with any and all Orders in any way.
5) Client certifies that all of the facts contained in any and all Orders related to this certification are true and correct to the best of its knowledge and Client does not know of any additional facts that are inconsistent with the abouv certification. client shall promptly send a replacement certification to Company disclosing any material change of facts or intentions described in this certification that occur after this certification is prepared and forwarded to Company.
APPENDIX THREE: AWARDS PROGRAM TERMS AND CONDITIONS
NO PURCHASE NECESSARY TO ENTER OR WIN. MAKING A PURCHASE OR PAYMENT OF ANY KIND WILL NOT INCREASE YOUR CHANCES OF WINNING. VOID WHERE PROHIBITED OR RESTRICTED BY LAW.
1. PROMOTION DESCRIPTION: From time to time, Company may offer awards under this Awards Program. The sponsor of this Awards Program is Company. The timing of each award shall have a start and an end date as defined in the Awards Program notices issued to you by the Company (“Promotion Period”). By participating in the Awards Program, each Entrant unconditionally accepts and agrees to comply with and abide by these Official Rules and the decisions of Company, which shall be final and binding in all respects. Company is responsible for the collection, submission or processing of Entries and the overall administration of the Awards Program. Entrants should look solely to Company with any questions, comments or problems related to the Awards Program. Company may be reached by email at CustomerService@TheOFMP.com.
2. ELIGIBILITY: Open to legal residents of the United States of America who are over twenty-one (21) years of age (the "Entrant").Company, and thier respective parents, subsidiaries, affiliates, distributors, retailers,sales representatives, advertising and promotion agencies and each of their respective officers, directors and employees (the "Promotion Entities"), are ineligible to enter the Awards Program or win a award.Household Members and Immediate Family Members of such individuals are also not eligible to enter or win."Household Members" shall mean those people who share the same residence at least three months a year. "Immediate Family Members" shall mean parents, step-parents, legal guardians, children, step-children, siblings, step-siblings, or spouses. This Awards Program is subject to all applicable federal, state and local laws and regulations and is void where prohibited or restricted by law.
3. AWARDS: Only one award per person and per household will be awarded. Gift cards and gift certificates are subject to the terms and conditions of the issuer. Awards cannot be transferred, redeemed for cash or substituted by winner. Company reserves the right in its sole and absolute discretion to award a substitute award of equal or greater value if an award described in these Official Rules is unavailable or cannot be awarded, in whole or in part, for any reason. The value of the award represents Company's good faith determination. That determination is final and binding and cannot be appealed. If the actual value of the award turns out to be less than the stated value, the difference will not be awarded in cash. Company makes no representation or warranty concerning the appearance, safety or performance of any award awarded. Restrictions, conditions, and limitations may apply. Company will not replace any lost or stolen award items.