GENERAL TERMS AND CONDITIONS OF SALE
1.- CONTRACTS
1.1 These General Terms and Conditions of Sale (“Terms and Conditions”) shall apply to every sale, lease, or offer of goods or services (“Work”) by NTS Amega West USA, Inc. (and any of its operating divisions or affiliated companies) (“SELLER”) to any party that purchases goods or receives services from SELLER (each, a “PURCHASER”). SELLER and PURCHASER may collectively be referred herein as the “Parties” and individually as a “Party.”
1.2 These Terms and Conditions shall control and govern all Work performed or to be performed by SELLER for PURCHASER under work orders, purchase orders, delivery tickets, invoices or other written or verbal agreements between the parties, relating to Work to be done by SELLER for PURCHASER. These Terms and Conditions (regardless of any terms and conditions in PURCHASER’s purchase order, invoice, work order, or any other document) shall supersede all prior or subsequent oral or written agreements or understandings with respect to the Work. Customer’s act of accepting the goods and services or paying for the goods and services shall constitute an acceptance of these Terms and Conditions.
1.3 Further, if PURCHASER requests Rental Equipment (e.g. equipment leased by SELLER to PURCHASER) as part of the Work, SELLER’s Terms and Conditions of Rental (“Rental Terms”), a copy of which is attached hereto as Exhibit A and incorporated in by reference, shall govern the Parties’ relationship regarding all aspects of the Rental Equipment regardless of whether or not reference is made to the Rental Terms and regardless of the form of request. These Terms and Conditions shall continue to supplement the Rental Terms with regards to any request for Rental Equipment and where these Terms and Conditions provide greater protections to SELLER than the Rental Terms, these Terms and Conditions shall control.
1.4 SELLER’s affiliates may provide Work pursuant to these Terms and Conditions by placing the affiliate’s name on the quote or order confirmation or other written document made a part of the agreed order in a conspicuous manner giving PURCHASER notice that such affiliate will be completing the request for Work. In such cases, (i) the affiliate performing the Work shall be treated as a separate Party under these Terms and Conditions, and (ii) the word “SELLER” in these Terms and Conditions shall be considered to be the particular affiliate performing the Work.
1.5 The PURCHASER’s requests for Work shall only become binding on SELLER upon written confirmation of the order. Agreements, undertakings and declarations of all kinds must be made in writing in order to be legally valid. Work performed under an oral request shall be subject to and incorporate these Terms and Conditions, but no oral work order, instruction, advice, or similar oral communication regarding the Work shall be the basis for any warranty, representation, change order, or agreement regarding payment unless reduced to writing and signed by an authorized representative of SELLER.
1.6 Any variations in quantities must be specifically agreed in writing in the relevant order to be valid The quantities binding for the invoiced amounts shall be those determined through the calibrated measurement taken by SELLER.
1.7 Cancellation of Goods. Except as specifically allowed by these Terms and Conditions, orders cannot be suspended or cancelled by PURCHASER under any circumstances without SELLER’s written consent after the date of the sales confirmation. PURCHASER agrees to pay a minimum charge of 25% of the order amount of standard items as liquidated damages for cancelled orders of goods. The suspension or cancellation fee for items made to order will be determined on a case by case basis in SELLER’s sole discretion, and PURCHASER agrees to pay up to 100% of the order amount if such suspension or cancellation is allowed. In addition, PURCHASER shall also reimburse SELLER for any costs and other expenses incurred as a result of suspension or cancellation. SELLER may terminate for convenience at any time. Notwithstanding the above, any confirmed order which is cancelled by PURCHASER will lead to a penalty of TWENTY-FIVE PER CENT (25%) of the order value. Additionally, if the order´s production has begun at the factory, the SELLER will be indemnified on the basis of the value of the work in progress.
1.8 For all quotes provided by SELLER, the price offered by SELLER to PURCHASER for the quantity and type of goods or services listed in the quote shall remain open for the lesser of 30 days or the validity stated on the quote itself before automatically expiring. SELLER may withdraw or modify a quote any time before receipt of the required deposit. Any quote provided is subject to supplier, transportation, and/or government surcharges, fees, taxes or similar charges imposed by others and which are passed through to PURCHASER, which may increase the cost.
2.- ACCEPTANCE AND DELIVERY
2.1 Delivery deadlines and other terms commence on the date of confirmation of the order by SELLER. Notwithstanding the foregoing, in the particular case of Pre-Production Meeting (PPM), it will take place during the following calendar week subsequent to the order´s confirmation. Delivery dates are intended to be estimates only, though reasonable efforts will be made to make deliveries as scheduled. SELLER assumes no liability, and PURCHASER hereby waives any claims it may have, for damages, losses, or penalties arising out of SELLER’s failure to deliver goods as scheduled. Notwithstanding the foregoing, PURCHASER has the right to cancel any order and obtain a refund of amounts previously paid to SELLER relating to such order if PURCHASER fails to make complete delivery within six (6) months of the delivery date. PURCHASER’s right to terminate and receive a refund in accordance with the preceding sentence shall be PURCHASER’s sole remedy for failure to meet a delivery date and PURCHASER hereby waives and shall hold harmless SELLER from all other claims related to the same, REGARDLESS OF FAULT, including delay caused by the sole or concurrent fault of SELLER.
2.2 SELLER may, in its reasonable discretion and with notice, make partial shipments of goods to PURCHASER without liability or penalty. Each shipment will constitute a separate sale, and PURCHASER shall pay for the units shipped whether such shipment is in whole or partial fulfillment of PURCHASER’s order.
2.3 Unless different delivery terms are agreed to by SELLER in writing, delivery shall be Ex Works (INCOTERMS 2020) SELLER’s warehouse and SELLER’s delivery obligation will be deemed fulfilled, and risk of loss shall pass to PURCHASER, when PURCHASER is notified that the shipment is available for shipment from SELLER’s manufacturing facility, even if for reasons that are of no fault of SELLER, the goods are not thereafter accepted, collected or shipped on time. Upon notification, PURCHASER must immediately proceed with the corresponding payments, which are due for the case of delivery, or which are caused by the delivery itself. In the event PURCHASER fails to accept or pay for goods properly made available to PURCHASER, SELLER reserves the right to: i) treat PURCHASER’s actions as a termination for convenience and pursue SELLER’s remedies provided in 1.7); or ii) SELLER is entitled to ship the goods at the risk and expense of PURCHASER at SELLER´s discretion, iii) or, optionally, to store them (all storage and financial costs are to be assumed by PURCHASER).
3.- SHIPMENT AND TRANSFER OF RISK
3.1 All goods shall be regarded as shipped under proper conditions, and damage shall only be considered to have occurred during transportation until proven otherwise. If, as per the applicable INCOTERM, the damage has occurred in the area of risk taking of SELLER, PURCHASER must uphold SELLER´s rights before the carrier or its transport insurer with the otherwise loss of possible claims against SELLER.
3.2 For possible loss, damage or confusion, PURCHASER is obliged to immediately effect the official confirmation required for the assertion of claims for compensation on receipt of the goods and to pass it on to SELLER.
4.- PRICE AND PAYMENT
4.1 All prices are understood as net, excluding taxes.
4.2 The agreed place of payment is the territory of SELLER and it will be regarded as such in the order confirmation. Payment will be made in cash, free of charge. Set-off or retention is excluded and shall not be allowed against any invoice. No invoice discounts made by PURCHASER shall be allowed by SELLER. If PURCHASER disputes any item billed, PURCHASER shall, within fifteen (15) days of receipt of SELLER’s invoice, notify SELLER of the item disputed and specify PURCHASER’s complaint. SELLER may authorize for payment on such item(s) to be withheld pending review; however, any undisputed portion shall be paid within the time period specified.
4.3 The PURCHASER shall make payment within the period established in the order confirmation, which shall not exceed the payment period provided by the applicable law. If no payment terms are provided on the confirmation, payment shall be due within thirty (30) days of receipt of SELLER’s invoice.
4.4 Credit notes over received bills of exchange and checks are always valid subject to the correct entry of the value. The resulting discount interest and charges are to be borne by PURCHASER. The SELLER accepts no liability for the timely presentation, protesting, notification and re-transfer of the bill if not cashed.
4.5 In case of default in the payment of the invoices, PURCHASER will be charged default interest and further applicable charges, without limitation on SELLER’s other remedies at law. It is agreed that default interest shall amount to the respective country’s Prime Rate plus FIVE PERCENT (5%) per annum, up to the maximum non-usurious rate of interest permissible by applicable law. Moreover, if there were outstanding deliveries pending invoicing, SELLER shall be entitled to withhold the same, until the payment of the outstanding invoices plus the accrued interests, if any, is made by PURCHASER.
4.6 Incoming payments may be applied, in SELLER’s discretion; first of all, to the costs and other supplementary fees, then to interests and finally, to the capital notwithstanding contradictory payment instructions or notations received from PURCHASER in connection with the payment.
4.7 Notwithstanding the agreed point of delivery and transfer of risk for damage to the goods, title to the goods shall not transfer until the earlier of: i) being loaded for shipment from SELLER’s warehouse; or ii) identification and marking of the goods as PURCHASER’s, provided that payment in full is received by SELLER.
4.8 In case the terms of payment are not fulfilled, or SELLER is made aware of circumstances, which in their opinion are suitable to reduce the credit standing of PURCHASER, SELLER has the right to demand further assurances regarding PURCHASER’s ability to make payment or to declare a default on the order not paid as well on all other contracts, which balances may be accelerated and become immediately due. The SELLER is then also entitled to execute still outstanding deliveries against advance payment only.
5.- TAXES
5.1 All taxes which SELLER may be required to pay or collect with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the material covered hereby shall be for the account of PURCHASER, and PURCHASER shall promptly pay the amount hereof to SELLER.
6.- OBLIGATION TO EXAMINE AND REPORT DEFECTS
6.1 The PURCHASER must inspect and examine deliveries of SELLER immediately after receipt and shall notify SELLER, not later than the following calendar week, about any possible complaints, including, but not limited to, deviations from the order and visible damage. This applies to material defects, short deliveries and/or differing deliveries.
6.2 After acceptance of the delivery, or deemed acceptance as a result of PURCHASER’s violation of the obligation for examination and to give notice of defects immediately after delivery, all legal dispositive rights and claims for damage to PURCHASER from a possible deviation of the delivery from the order are barred and excluded and PURCHASER’s sole remedy with regards to such goods will be SELLER’s limited warranty provided below.
7.- LIMITED WARRANTY
7.1 Limited Warranty. SELLER warrants that all goods sold to PURCHASER shall conform to the written specifications provided by SELLER and shall be free from defects in workmanship or materials. SELLER agrees to perform all services in accordance with industry standards and the terms of any written order. PURCHASER shall assign to SELLER, to the extent in each case that the same are assignable, any warranties received by SELLER from the manufacturers or third-party sellers of any goods.
7.2 Warranty Period. The warranty term for new equipment purchased is one (1) year from the date of delivery. WITH REGARDS TO ALL SERVICES, INCLUDING REPAIR OR MODIFICATION SERVICES PROVIDED ON PURCHASER’S GOODS OR FACILITIES, SELLER DOES NOT WARRANT THE RESULTS OF THE WORK AND DOES NOT GUARANTEE ANY OUTCOME OR END RESULT AND SELLER’S WARRANTY FOR PERFORMANCE SHALL EXPIRE IMMEDIATELY AFTER COMPLETION UNLESS PROMPTLY REJECTED AS PROVIDED IN ARTICLE 6. UNLESS EXPRESSLY PROVIDED OTHERWISE IN AN ORDER, ALL GOODS, MATERIALS OR PARTS (OTHER THAN THOSE PROVIDED IN CONNECTION WITH NEW EQUIPMENT) ARE PROVIDED “AS IS”, WITH ALL FAULTS, UNLESS REJECTED IMMEDIATELY UPON DELIVERY.
7.3 Warranty Remedy. If any Work is found to be nonconforming during the Warranty Period, SELLER shall re-perform, repair or replace the nonconforming Work at SELLER’s expense; or, at SELLER’s option, refund to PURCHASER that portion of the consideration that is attributable to the nonconforming Work. SELLER will have no liability under this warranty unless SELLER receives written notice from PURCHASER of the defect within thirty (30) days after discovery of the defect. The claimed goods are to be sent back on demand or after request for the approval of the SELLER.
7.4 Exclusions. SELLER shall not be liable under this warranty and this warranty will be null and void if the Work, or any part thereof, was damaged, subjected to abuse, altered, or misused or if the Work, or any part thereof, were improperly stored, installed, maintained, repaired or operated, by any person other than SELLER or a person subject to SELLER’s control. Warranty does not cover normal wear and tear. Warranty does not cover the goods: a) If after delivery, the goods are processed in a way that may deteriorate the characteristics of the material (e.g. thermal treatments, inaccurate welding, etc.) and/or b) If there are material upgrades after the delivery of the goods -understood as substantial upgrades arising from tests and documentation- not previously accepted in writing by the SELLER.
7.5 PURCHASER’S EXCLUSIVE REMEDY FOR NON-CONFORMING OR DEFECTIVE WORK (WHETHER BASED ON CONTRACT OR IN TORT) IS PREMIUM’S EXPRESS WARRANTY TO REPAIR, RE-PERFORM, OR REPLACE NEW EQUIPMENT FOR ONE YEAR PROVIDED ABOVE. THESE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ANY OTHER WARRANTIES OF ANY KIND, WRITTEN, ORAL, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES OR REPRESENTATIONS NOT EXPRESSLY CONTAINED HEREIN AND PURCHASER AGREES THAT NO OTHER WARRANTIES OR REPRESENTATIONS HAVE BEEN RELIED UPON OR MADE THE BASIS FOR ANY BARGAIN.
8.- FORCE MAJEURE
8.1 Events of force majeure and other circumstances beyond the sphere of influence of SELLER, e.g. operational interferences, traffic interferences as well as difficulties in supplying factories with power, raw materials, fuels and auxiliary materials, acts of God, and further hindrances in production and delivery exclude claims for damages to PURCHASER and entitle SELLER either to extend the delivery deadline or to completely or partially withdraw from the contract.
8.2 Force majeure further includes pandemic, strike, lockout, international economic blockades, trade bans imposed in those countries in which any of the Parties conducts business and further circumstances, which essentially complicate the delivery or even make it impossible, whereby it is of no importance, whether they occur to SELLER or one of its sub-suppliers.
8.3 The SELLER undertakes to inform PURCHASER promptly about the occurrence and the termination of such delivery hindrances.
8.4 In case of a justified withdrawal by PURCHASER due to force majeure, the costs and charges accrued by SELLER are borne by both contract parties by one half each according to equity.
8.5 If the circumstances under which the contract was concluded changed so considerably that it may rightly be assumed that the conclusion would not have taken place at all under the changed circumstances or at least at other terms, SELLER is entitled to withdraw from the contract or to demand a change of the contractual provisions, e.g. payment in another currency, change of the delivery modalities, etc., which would take the changed circumstances into account.
9.- LIMITATION OF LIABILITY
9.1 The following definitions will apply:
“Claims” shall include, without limitation, any and all claims, losses, damages, causes of action, fines, penalties, enforcement proceedings, suits, and liabilities of every kind (including interest and all expenses of litigation, court costs, and attorneys’ fees), whether arising in tort, contract, strict liability, under statute, or of any other character whatsoever.
“Client” means any customer or end-user that Purchaser has undertaken to provide goods or services to which incorporates the Work provided by Seller.
“Client Group” means and includes the Client, and each of their parent companies, affiliates, subsidiaries, successors, co-owners, co-lessees, joint owners, and permitted assigns and each of their shareholders, officers, directors, partners, employees, and agents.
“Purchaser Group” means Purchaser and its contractors of any tier and their respective affiliates, and its and their respective officers, directors, and employees (including agency personnel), but shall not include any member of Seller Group.
“Seller Group” means the Seller, and its affiliates and its and their subcontractors and their respective affiliates, and its and their respective officers, directors, and employees, but shall not include any member of the Purchaser Group or Client Group.
“Regardless of Fault” means WITHOUT REGARD TO THE CAUSE(S) THEREOF INCLUDING, WITHOUT LIMITATION, PREEXISTING CONDITIONS, IMPERFECTION OF MATERIAL, DEFECT OR FAILURE OF EQUIPMENT, ULTRA-HAZARDOUS ACTIVITY, STRICT LIABILITY, BREACH OF STATUTORY DUTY, BREACH OF SAFETY REQUIREMENT OR THE NEGLIGENCE OF ANY PARTY OR PARTIES (INCLUDING THE NEGLIGENCE OF THE INDEMNITEE), WHETHER SUCH NEGLIGENCE BE SOLE, JOINT, CONTRIBUTORY, OR CONCURRENT, ACTIVE OR PASSIVE.
9.2 IN NO EVENT SHALL SELLER BE LIABLE FOR, AND PURCHASER EXPRESSLY RELEASES, INDEMNIFIES, AND HOLDS HARMLESS SELLER FROM AND AGAINST ANY AND ALL LIABILITY FOR PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING IN FAVOR OF PURCHASER GROUP OR CLIENT GROUP, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, BUSINESS INTERRUPTION, DOWNTIME, LOSS OR INABILITY TO USE PROPERTY OR EQUIPMENT, LOSS OF WELL, RESERVOIR/UNDERGROUND DAMAGE, LOSS OF OIL, GAS OR OTHER MINERALS, DAMAGES AND EXPENSES DUE TO BLOW OUT, AND DAMAGES OR EXPENSES DUE TO POLLUTION, REGARDLESS OF FAULT INCLUDING THE SOLE, JOINT OR CONCURRENT FAULT OR NEGLIGENCE OF SELLER OR THIRD PARTIES.
9.3 SUBJECT TO AND WITHOUT LIMITING SELLER’S INDEMNITY OBLIGATIONS UNDER SECTION 10, BUT OTHERWISE NOTWITHSTANDING ANY OTHER PART OF THESE TERMS AND CONDITIONS, THE TOTAL LIABILITY OF SELLER FOR ANY LOSS OF ANY KIND TO PURCHASER, FROM SELLER’S GOODS’ OR SERVICES’ FAILURE TO CONFORM TO ANY SPECIFICATION, BREACH OF WARRANTY, NEGLIGENCE OR OTHER FAILURE TO CONFORM TO ANY STANDARD OF CARE, SHALL NOT EXCEED THE AMOUNT RECEIVED BY SELLER FROM BUYER FOR SUCH GOODS AND SERVICES. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF FAULT INCLUDING THE SOLE, JOINT OR CONCURRENT FAULT OR NEGLIGENCE OF SELLER OR THIRD PARTIES..
9.4 SUBJECT TO AND WITHOUT LIMITING SELLER’S OBLIGATIONS UNDER SECTION 7, PURCHASER HEREBY WAIVES AND SHALL HOLD SELLER HARMLESS AGAINST ALL CLAIMS FOR DAMAGES WHICH MAY ARISE IN ITS FAVOR, REGARDLESS OF FAULT, EXCEPT AND TO THE EXTENT SUCH CLAIMS ARE BASED ON WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY THE SELLER.
9.5 Claims for damages and recourses must be legally asserted against SELLER within TWELVE (12) MONTHS of delivery of the goods or completion of the services complained of, otherwise they will not be valid and PURCHASER hereby waives any Claims it may have which arise after such time period REGARDLESS OF FAULT.
9.6 The SELLER will not be responsible in any case of the processing done to the goods after delivery that may deteriorate the characteristics of the material (e.g. thermal treatments, inaccurate welding, etc.).
9.7 The SELLER will not be responsible in any case for consequences derived of material upgrades -as defined in section 7.4.b) above- if not previously accepted in writing by SELLER.
10.- INDEMNITY
10.1 General Indemnity. IT IS UNDERSTOOD AND AGREED BY AND BETWEEN PURCHASER AND SELLER THAT THE RESPONSIBILITY FOR CLAIMS SHALL BE AS FOLLOWS:
(a) SUBJECT TO 10.1(b), 10.2, and 10.3, PURCHASER SHALL INDEMNIFY AND SAVE HARMLESS SELLER GROUP FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, COSTS, CLAIMS, CAUSES OF ACTION, DAMAGES AND EXPENSES FOR INJURY (INCLUDING DEATH) TO PERSONS OR DAMAGE TO PROPERTY CAUSED WHOLLY OR IN PART BY ANY ACT OR OMISSION OF PURCHASER GROUP, INCLUDING ANY AND ALL EXPENSES, LEGAL OR OTHERWISE, INCURRED IN THE INVESTIGATION OR DEFENSE OF ANY SUCH CLAIM OR SUIT ARISING OUT OF WORK DONE UNDER THIS AGREEMENT, REGARDLESS OF FAULT, INCLUDING BUT NOT LIMITED TO THE SOLE, JOINT OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF SELLER;
(b) IF, AFTER PURCHASER HAS BOTH DEFENDED ANY SUCH CLAIM AND SUCH CLAIM HAS BEEN DISPOSED OF, IT IS JUDICIALLY DETERMINED THAT THE INJURY, DEATH OR PROPERTY DAMAGE WAS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A MEMBER OF SELLER’S SUPERVISORY OR MANAGEMENT PERSONNEL, SELLER WILL REIMBURSE PURCHASER FOR ITS PROPORTIONATE SHARE OF THE DEFENSE COSTS AND WILL BE LIABLE FOR ITS PROPORTIONAL SHARE OF THE JUDGMENT.
10.2 If a Claim arises out of work and services pertaining to a well for oil, gas, or water or drilling for minerals as defined in Tex. Civ. Prac. & Rem. Code § 127.001(1), the parties expressly agree to allocate the risks associated with bodily injury, death, or property damage mutually as follows:
(a) SELLER SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS PURCHASER GROUP FROM AND AGAINST ANY AND ALL CLAIMS THAT ARE BROUGHT BY OR ON BEHALF OF THE SELLER GROUP ALLEGING BODILY INJURY, ILLNESS, OR DEATH OF ANY MEMBER OF THE SELLER GROUP OR THAT RESULT FROM PHYSICAL DAMAGE, LOSS, OR LOSS OF USE OF ANY TANGIBLE PROPERTY OF SELLER GROUP (OTHER THAN DAMAGE TO RENTAL EQUIPMENT), AND WHICH ARISE OUT OF, RELATE TO, OR ARE CONNECTED WITH THE AGREEMENT OR SELLER’S GOODS AND SERVICES, REGARDLESS OF FAULT. FURTHER, IF AND TO THE EXTENT PURCHASER’S CLIENT HAS AGREED TO MUTUAL INDEMNITY FOR BODILY INJURY AND PROPERTY DAMAGE IN FAVOR OF SELLER, SELLER AGREES THAT IT WILL RELEASE, PROTECT, DEFEND, INDEMNIFY AND HOLD CLIENT GROUP HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS BROUGHT BY OR ON BEHALF OF ANY MEMBER OF SELLER GROUP THAT ARISE FROM PERSONAL INJURY, DEATH, OR INJURY TO, LOSS OF, OR DESTRUCTION OF PROPERTY SUFFERED BY ANY MEMBER OF SELLER GROUP ARISING IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT OR ANY PURCHASE ORDER, REGARDLESS OF FAULT; AND
(b) PURCHASER SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS CONTRACTOR GROUP FROM AND AGAINST ANY AND ALL CLAIMS THAT ARE BROUGHT BY OR ON BEHALF OF THE PURCHASER GROUP ALLEGING BODILY INJURY, ILLNESS, OR DEATH OF ANY MEMBER OF THE PURCHASER GROUP OR THAT RESULT FROM PHYSICAL DAMAGE, LOSS, OR LOSS OF USE OF ANY TANGIBLE PROPERTY OF PURCHASER GROUP.
(c) EACH OF PURCHASER AND SELLER AGREE TO CARRY INSURANCE IN SUPPORT OF THEIR RESPECTIVE INDEMNITY OBLIGATIONS UNDER THIS SECTION 10.2 IN MUTUALLY AGREED EQUAL AMOUNTS WITH MINIMUM LIMITS NOT LESS THAN THE AMOUNTS REQUIRED UNDER SECTION 13 HEREIN. EACH PARTY AGREES THAT THE MAXIMUM AMOUNT OF SUCH SUPPORTING INSURANCE SHALL BE THE LOWER OF THE MAXIMUM AMOUNT CARRIED BY EITHER PARTY. IF A PARTY DOES NOT CARRY INSURANCE IN THE REQUIRED MUTUALLY AGREED AMOUNT, SUCH PARTY WILL BE DEEMED TO BE SELF-INSURED IN AN AMOUNT EQUAL TO THE AMOUNT OF INSURANCE CARRIED BY THE OTHER PARTY IN COMPLIANCE WITH THIS SECTION 10.2.
10.3 Pass Through Indemnity. To the extent a Client or other higher-tier contractor in a separate contract has agreed to indemnify PURCHASER, and to the extent the benefit of such indemnities are extended to PURCHASER’s subcontractors or suppliers such as SELLER, PURCHASER shall assist SELLER in the enforcement of such indemnity obligations against Client. As between Client and PURCHASER, it is intended that any assumption of liability by Client for damage to Client Group’s property (including damage to the well, formation or pollution claims) shall be primary to PURCHASER’s assumptions of liability in Section 10.1. Upon SELLER’s request, PURCHASER shall make any applicable Master Service Agreement (or similar agreement) between PURCHASER and Client available to SELLER for review.
10.4 The indemnities provided for in these Terms and Conditions shall be limited to the extent necessary for compliance with applicable state and federal laws, and to the extent any state or federal laws are at variance with the indemnities provided herein, these Terms and Conditions shall be deemed to be amended so as to comply with such state and federal laws. The Parties agree that any anti-indemnity statute which makes the indemnity agreements provided herein unenforceable against the other Party personally shall not have any effect or limit the insurance obligations of each Party under this Agreement. Each Party shall still be able to take advantage of additional insured coverage obtained for the benefit of the other (covering contractual liabilities as originally written in this Agreement) to the full extent allowed by law regardless of the enforceability of the underlying indemnity.
11.- SECURITY INTEREST
11.1 As security of PURCHASER´S obligation to SELLER to pay for the goods purchased hereunder, PURCHASER grants SELLER a purchase money security interest on the goods shipped hereunder and authorizes SELLER to take any and all steps to perfect or otherwise protect or maintain such security interest.
12.- PROPRIETARY RIGHTS, DRAWINGS, SAMPLES
12.1 If domestic or foreign proprietary rights of third parties, especially rights regarding patents, trademarks or samples, are violated with the utilization of drawings, samples or other remedies provided by PURCHASER or with the execution of provisions about quality or further characteristics or of similar provisions of PURCHASER, then PURCHASER must indemnify SELLER for all expenses resulting from that and indemnify SELLER against legal action.
12.2 For loss or damage of provided drawings, samples and the like provided by PURCHASER, the liability of SELLER for accident and slight negligence is waived and excluded by PURCHASER. The existence of gross negligence is to be verified by PURCHASER. Insurance policies are taken out by SELLER only, with the express order and at the expense of PURCHASER.
13.- INSURANCE
13.1 PURCHASER shall maintain the following insurance with reputable insurers:
TYPE OF INSURANCE MINIMUM LIMITS
Workers’ Compensation Statutory limits
Employer’s Liability
Each accident or occurrence $1,000,000
Disease-Policy limit $1,000,000
Disease-Each employee $1,000,000
Commercial General Liability
General aggregate $2,000,000
Products/completed operations aggregate $1,000,000
Each occurrence $1,000,000
Fire damage $50,000
Business Automobile Liability
Combined single limit $1,000,000
Excess Liability
Combined single limit $2,000,000
13.2 The Parties understand that the aforementioned amounts are only minimum amounts, and coverage may be procured in greater amounts then specified above. The Parties agree that should the insurance policy(ies) contemplated herein in any way (including, but not limited to, coverage for an “insured contract”) purport to limit SELLER’s coverage to any minimum limits or coverage amounts required by written contract, it is agreed that the minimum limits and/or coverage required in this contract shall automatically be amended to conform to the full and maximum limits and coverage of PURCHASER’s insurance policies (Subject to 10.2(c)).
13.3 To the extent of PURCHASER’s liabilities assumed in this Agreement, all of the above insurance shall be endorsed to provide that: i) PURCHASER’s insurers waive their right of subrogation (equitable or by assignment, express or implied, loan receipt or otherwise) against SELLER Group; ii) PURCHASER’s insurers cover SELLER Group as additional insureds (except for Worker’s Compensation); and iii) such insurance coverage is primary and non-contributory to any other insurance coverage maintained or available to SELLER Group.
14.- EXPORT RULES AND CONTROLS
14.1 NTS Amega West USA, Inc. products procured by PURCHASER from any subsidiary of NTS Amega West USA, Inc. may not be used, resold, diverted, transferred or otherwise exported, directly or indirectly in any manner that would violate any of the applicable export rules and controls (including, but not necessarily limited to, orders issued by the United States’ Office of Foreign Assets Controls (OFAC), UK Office of Financial Sanctions Implementation (OFSI), or other applicable regulatory agency or law restricting the importation, sale, or use of the products in particular countries or regions). PURCHASER is solely responsible for required compliance with any applicable import and export laws and regulations after the goods reach the delivery point (which, unless specified otherwise, shall be Ex Works Seller’s warehouse).
14.2 Ethics and Anti-Corruption. SELLER warrants and represents that neither the SELLER nor the SELLER’S parent or subsidiary companies, affiliates or any of their shareholders, subcontractors, members, managers, directors, officers, employees, independent contractors, subcontractors or agents: (a) has made or authorized or will make or authorize any offer, payment, promise to pay, any money, including kick-backs, or a gift, promise to give, or the giving of anything of value to any third party including, but not limited to, a government official, political party, party official, family member or representative of a state-owned enterprise, for the purpose of wrongfully influencing the recipient; obtaining or retaining business; or for securing or obtaining an improper business advantage; or (b) has taken or permitted or will take or permit any action to be taken, including an action in connection with the conduct of their business and the transactions contemplated under this Agreement, which would cause the SELLER or PURCHASER be in violation of any applicable Anti-Bribery or Anti-Corruption Laws, including, where applicable, but not limited to the United States Foreign Corrupt Practices Act of 1977, as amended; the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related implementing legislation and all local equivalent laws in the countries in which business is conducted.
Each Party shall maintain records of all transactions relating to the performance of this agreement, including, without limitation, the spending of money, any other disposition of assets and the incurrence of liabilities, expenses and contractual obligations, in accordance with applicable law. Such records shall, fairly and accurately reflect the transactions undertaken by the parties in the performance of this agreement
14.3 The PURCHASER undertakes to comply with these rules and controls and to indemnify and hold harmless SELLER in any case of breach of those rules and controls.
15. APPLICABLE LAW, VENUE, AND ALTERNATIVE DISPUTE RESOLUTION.
15.1 Applicable Law: This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by and construed in accordance with, the laws of the State of Texas, excluding any choice of law rules or principles which would refer the matter to the laws of another jurisdiction, and shall be performable in Harris County Texas. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. IN CONNECTION WITH ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, OR STATUTE, EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF—AND AGREES TO BRING ANY ACTION, LITIGATION, OR PROCEEDING ONLY IN—THE COURTS OF THE STATE OF TEXAS IN HARRIS COUNTY, TEXAS AND THE FEDERAL COURTS IN AND FOR THE SOUTHERN DISTRICT OF TEXAS SITTING IN HOUSTON, TEXAS.
15.2 Alternative Dispute Resolution/Choice of Law for Certain International Contracts. For contracts which involve the delivery of goods or performance of services by Seller’s affiliates located outside of North America, the following shall apply:
15.2.1 Arbitration Clause: Subject to and without otherwise limiting Section 15.1, either party may request that a dispute arising out of this contract be submitted to binding arbitration. If such request is made, then any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be [Singapore]. The Tribunal shall consist of [1 or 3] arbitrators. The language of the arbitration shall be English. To the extent a claim is brought outside of arbitration (whether or not this clause has been invoked), Section 15.1 shall apply; provided, however, if this clause has been invoked, then either party may seek an order from such court of proper venue compelling, or abating the matter in favor of, arbitration pursuant to this Section 15.2.1.
15.2.2 Choice of Law. Subject to and without otherwise limiting Section 15.1, the parties may agree that the arbitrator(s) will apply the law of the UAE to all disputes raised within the arbitration. In order for UAE law to apply, an officer of Seller must agree to the application of UAE law in writing.
16.- MISCELLANEOUS
16.1 Should individual provisions of these terms of sale be or become completely or partially ineffective, invalid or unenforceable, this does not affect the effectiveness, validity or enforceability of the further provisions.
16.2 The SELLER ´s territorial law is applicable to the legal relations of the contract parties.
16.3 These Terms and Conditions are intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any provision of the Terms and Conditions, or the application thereof to any person or circumstance, is for any reason or to any extent invalid or unenforceable, the remainder of the agreement and the application of such provision to the other persons or circumstances shall not be affected thereby, but rather is to be enforced to the greatest extent permitted by law.
EXHIBIT A
TERMS AND CONDITIONS OF RENTAL
1. LEASE OF EQUIPMENT: These Rental Terms and Conditions (T&Cs) apply to the lease of the equipment (“Equipment”) identified on the order documentation (“Lease Schedule,” together with these T&Cs and the General Terms and Conditions of Sale, being collectively referred to as the “Lease Agreement”) by NTS Amega West USA, Inc. (or any of its operating divisions or affiliated companies listed as the Lessor on the Lease Schedule) (“Lessor”) to the customer identified on the order documentation (“Lessee”). Acceptance of Lessee’s order is expressly limited to these terms and conditions, and the quotation, if any, and order acceptance issued by Lessor. All orders submitted by Lessee (each an “Order”) shall be deemed to be an offer by Lessee to lease the Equipment subject to this Lease Agreement. Notwithstanding any oral or written statement made by Lessee, Lessor’s acceptance of Lessee’s Order does not in any way constitute acceptance of Lessee’s terms and conditions, and Lessee’s terms and conditions are not a part of this Lease Agreement unless an authorized official of Lessor expressly agrees in writing to accept such terms and conditions or any part thereof. No Order shall be binding on Lessor until accepted by an authorized official of Lessor. Lessor is under no obligation to accept any Order. Any quotation is valid for thirty (30) days, unless otherwise indicated on the quotation. All quotations are subject to change at any time. No contract shall come into existence until Lessor issues an order acceptance or ships the Equipment to Lessee. Lessor reserves the right to reallocate, without liability to Lessee, Equipment for which Lessee has not accepted delivery by the specified delivery date.
Lessor hereby leases to Lessee the right to use and Lessee hereby rents and accepts the right to use the Equipment listed on the Lease Schedule(s), subject to the terms and conditions hereof, as supplemented with respect to each item of Equipment by the terms and conditions set forth in the appropriate Lease Schedule. This Lease Agreement is effective from the date Lessor issues an order acceptance or delivers the Equipment to Lessee, and shall continue until terminated.
2. LEASE CHARGE: The lease charges for the Equipment leased pursuant to this Lease Agreement shall be the amounts set for in the applicable Lease Schedule (the “Lease Charges”). Lessee agrees to pay to Lessor the Lease Charges in accordance with the Lease Schedule(s), and the payments shall be made at the Lessor’s address indicated thereon. Unless otherwise specifically stated on a document agreed to in writing by Lessor, terms of payment shall be net cash (U.S. dollars) without setoff due thirty (30) days from the invoice date. Lessee shall provide appropriate rig records to validate duration of Equipment usage. Charges for taxes made in accordance with Section 3 and charges made under any other provision of this Lease Agreement and payable by Lessee shall be paid to Lessor on the date specified in the Lease Schedule(s) or the applicable invoices delivered to Lessee. If any payment is not received in a timely manner, Lessee agrees to and shall, to the extent permitted by law pay on demand, as a late charge, an amount equal to one and one-half percent per month or the maximum percentage allowed by law if less, of the amount past due (“Late Charges”). Further, upon request of Lessor, Lessee shall, as soon as practicable, provide Lessor with a description of the wellsite or other property where the Equipment was used and the name and last known address of the owner and/or higher-tier contractor to whom Lessee furnished work in connection with the past-due invoice, sufficient to allow Lessor to exercise its lien rights based thereon.
3. TAXES: In addition to the Lease Charges set forth in Section 2, Lessee shall be responsible for (and reimburse Lessor for) all assessments, sales and use taxes, rental taxes, gross receipts taxes, personal property taxes and other taxes now or hereafter imposed by any government, agency, province or otherwise upon the Equipment, including upon the ownership, leasing, renting, purchase, possession or use of the Equipment, whether assessed to Lessor or Lessee (the “Taxes”).
4. DELIVERY AND FREIGHT COSTS: The agreed upon delivery dates, if any, are based on the Lessor’s projected lead time, current inventory, commitments and supplier’s advice. All shipment and delivery dates are estimates only. All shipments shall be Ex Works Lessor’s facility unless otherwise specified in writing on the Order. Lessor is not responsible for any installation of Equipment. Lessor shall not be liable to Lessee for any damages, losses or expenses if Lessor fails to meet the estimated delivery date. Lessor may deliver the Equipment in installments. Claims for shortages must be made in writing within two (2) days of Lessee’s receipt of shipment, or Lessee is deemed to have waived such claims. Lessee shall have a period of two (2) business days after delivery of the Equipment to inspect the Equipment and notify Lessor in writing if any of such Equipment is unacceptable. Lessee agrees that unless it delivers such specific written notice within such two business day period, (i) it shall be deemed that Lessee has fully inspected the Equipment, (ii) it shall be deemed that Lessee has accepted the Equipment and that such Equipment is in good condition and repair, and (iii) Lessee waives any right to subsequently claim that the Equipment is defective or were not in good condition and repair. If Lessee provides such notice to Lessor within such two (2) business day period, Lessor shall have the right, as determined in its sole discretion, to replace such Equipment or terminate the order with regards to such unacceptable Equipment.
Unless otherwise provided for by Lessor in a Lease Schedule, all transportation charges upon the Equipment for delivery to Lessee’s designated location are to be paid by Lessee.
5. RISK OF LOSS; RETURN TO LESSOR: Upon termination or expiration of the term of a Lease Schedule, Lessee must return the applicable Equipment to Lessor’s designated location at Lessee’s cost and in good condition, subject to normal wear and tear, within seven (7) days of Lessor’s request. Lessee assumes and shall solely bear the risk of loss for the Equipment for injury, damage (including damage to third parties and their property), loss, destruction, theft, expropriation or requisition (as to either title or use) REGARDLESS OF FAULT. Lessee is responsible for any damage of any nature whatsoever to any Equipment that occurs while the Equipment is in the Lessee’s custody or control. Upon the expiration of the Lease Term for any item of Equipment, Lessee shall return the Equipment to Lessor in the same condition as received, reasonable wear and tear excepted. If any Equipment is returned to Lessor damaged, but capable of repair as determined by Lessor, Lessee shall pay the cost of repair. If Lessee fails to return any Equipment or returns any damaged equipment that are incapable of being repaired as determined by Lessor, Lessee shall pay to Lessor the replacement cost of such Equipment.
6. MAINTENANCE: Lessee agrees at Lessee’s expense, to maintain the Equipment in the same condition as received, reasonable wear and tear excepted, and to make all repairs and replacements necessary to maintain, preserve, and keep the Equipment in good order and condition.
7. LOCATION, OWNERSHIP AND USE: Except as expressly contemplated on a schedule hereto, the Equipment shall, at all times, be the sole and exclusive property of Lessor. Lessee shall have no right or property interest therein, except for the right to use the Equipment as contemplated by the subject Order. Lessee shall keep the Equipment at all times free and clear from all claims, levies, encumbrances and process. Lessee shall give Lessor immediate notice of any such attachment or other judicial process affecting any of the Equipment. Without Lessor’s written permission, Lessee shall not attempt to or actually pledge, lend, create a security interest in, sublet, exchange, trade, assign, swap, use for an allowance or credit or otherwise, any item of Equipment.
During the entire term of this Lease Agreement, the Equipment will be located at the locations designated on the Order (the “Site”). Lessee will obtain written permission from Lessor if Lessee wishes to move the Equipment from the Site. If the Site is a rig, the rig is permitted to take the Equipment with them on a rig move but is required to keep Lessee informed of the new rig location. All transportation costs and expenses, and any liability associated with or arising from the transportation of the Equipment to and from sites shall be the sole obligation and responsibility of Lessee.
Lessee shall reasonably cooperate and use commercially reasonable efforts to provide Lessor with access to the Sites upon Lessor’s request. Lessor acknowledges that access to a particular Site may be in the discretion of the operator conducting the oil and gas development operations at such Site. Notwithstanding the foregoing, if Lessor is denied access to Equipment on a Site or otherwise, and such denial of access continues for 30 days after Lessor sends Lessee written notice that it was denied access, then the Equipment shall be deemed lost and Lessee shall be responsible for payment of the replacement value of such Equipment in accordance with Section 9.
8. FINANCING STATEMENT: Lessor is hereby authorized by Lessee to cause this Lease Agreement or other instruments, including Uniform Commercial Code inancing Statements, to be filed or recorded for the purposes of showing Lessor’s interest in the Equipment. Lessee agrees to execute any such instruments as Lessor may request from time to time.
9. LOSS AND DAMAGE: Lessee shall add the Equipment to Lessee’s existing insurance policy pursuant to Section 10 and assume and bear the risk of loss, theft and damage (including any governmental requisition, condemnation or confiscation) to the Equipment and all component parts thereof from any and every cause whatsoever, whether or not covered by insurance. No loss or damage to the Equipment or any component part thereof shall impair any obligation of Lessee under this Lease Agreement, which shall continue in full force and effect except as hereinafter expressly provided. Lessee shall repair or cause to be repaired all damage to the Equipment. In the event that all or part of the Equipment shall, as a result of any cause whatsoever, become lost, stolen, destroyed or otherwise rendered irreparably unusable or damaged (collectively, the “Loss”) then Lessee shall, within ten (10) days after the Loss, fully inform Lessor in writing of such Loss and shall pay to Lessor the Lost-in-Hole charge for the Equipment set forth in the applicable Lease Schedule.
10. INSURANCE: In addition to all insurance requirements provided for in the General Terms and Conditions of Sale, Lessee, at its expense, shall maintain property and casualty insurance insuring the Equipment for its casualty loss value naming Lessor and its assigns as additional loss payees until such period as the Equipment is returned to Lessor or as otherwise herein provided, whether or not this Lease Agreement has terminated as to the Equipment. The insurance shall cover the interest of both Lessor and Lessee in the Equipment, or as the case may be, shall protect both the Lessor and Lessee in respect to all risks arising out of the condition, delivery, installation, maintenance, use or operation of the Equipment. The proceeds of any loss or damage insurance shall be payable to Lessor. It is understood and agreed that any payments made by Lessee or its insurance carrier for loss or damage of any kind whatsoever to the Equipment are not rental payments or adjustments of rental, but are made solely as indemnity to Lessor for loss or damage of its Equipment.
11. WARRANTY DISCLAIMERS: OTHER THAN LESSEE’S RIGHT TO RETURN THE EQUIPMENT WITHIN TWO DAYS OF DELIVERY PROVIDED IN SECTION 4, THE EQUIPMENT IS PROVIDED “AS IS”, WHERE IS AND WITH ALL FAULTS AND LESSOR DOES NOT MAKE ANY WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. LESSEE ACKNOWLEDGES THAT IT IS NOT RELYING ON LESSOR’S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES CONTAINED IN THIS LEASE AGREEMENT.
WARRANTY INDEMNITY. LESSEE HEREBY RELEASES LESSOR FROM ANY LIABILITY FOR, AND SHALL PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS LESSOR GROUP FROM AND AGAINST ANY CLAIM FROM A THIRD PARTY FOR ANY LIABILITY, CLAIM, LOSS, DAMAGE OR EXPENSE OF ANY KIND OR NATURE, WHETHER BASED UPON A THEORY OF STRICT LIABILITY OR OTHERWISE, CAUSED, DIRECTLY OR INDIRECTLY, BY: (I) THE INADEQUACY OF ANY ITEM OF EQUIPMENT FOR ANY PURPOSE; (II) ANY DEFICIENCY OR ANY LATENT OR OTHER DEFECTS IN ANY EQUIPMENT WHETHER OR NOT DETECTABLE BY LESSEE; (III) THE SELECTION, MANUFACTURE, REJECTION, OWNERSHIP, LEASE, POSSESSION, MAINTENANCE, OPERATION, USE OR PERFORMANCE OF ANY ITEM OF EQUIPMENT; (IV) ANY INTERRUPTION OR LOSS OF SERVICE, USE OR PERFORMANCE OF ANY ITEM OF EQUIPMENT; OR (V) ANY LOSS OF BUSINESS OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER OR NOT RESULTING FROM ANY OF THE FOREGOING WITHOUT REGARD TO THE CAUSE(S) THEREOF INCLUDING, WITHOUT LIMITATION, PREEXISTING CONDITIONS, IMPERFECTION OF MATERIAL, DEFECT OR FAILURE OF EQUIPMENT, ULTRA-HAZARDOUS ACTIVITY, STRICT LIABILITY, BREACH OF STATUTORY DUTY, BREACH OF SAFETY REQUIREMENT OR THE NEGLIGENCE OF ANY PARTY OR PARTIES (INCLUDING THE NEGLIGENCE OF THE INDEMNITEE), WHETHER SUCH NEGLIGENCE BE SOLE, JOINT, CONTRIBUTORY, OR CONCURRENT, ACTIVE OR PASSIVE (HEREINAFTER COLLECTIVELY REFERRED TO AS “REGARDLESS OF FAULT”).
12. EVENT OF DEFAULT: The occurrence of any of the following events shall constitute an Event of Default under this Lease Agreement and/or any Lease Schedule:
(1) the nonpayment by Lessee of any Lease Charges or any other sum required hereunder to be paid by Lessee which non-payment continues for a period of thirty (30) days from the due date;
(2) the failure of Lessee to perform any other term, covenant or condition of this Lease Agreement, or any other document, agreement or instrument executed pursuant hereto or in connection herewith, which is not cured within thirty (30) days after notice from Lessor;
(3) Lessee attempts to or does remove, transfer, sell, swap, assign, sublease, trade, exchange, encumber, receive an allowance or credit for, or part with possession of, any item of Equipment; or
(4) Lessee ceases doing business as a going concern, is insolvent, makes an assignment for the benefit of creditors, fails to pay its debts as they become due, offers a settlement to creditors or calls a meeting of creditors for any such purpose, files a voluntary petition in bankruptcy, is subject to an involuntary petition in bankruptcy, is adjudicated bankrupt or insolvent, files or has filed against it a petition seeking any reorganization, arrangement or composition, under any present or future statute, law or regulation.
13. REMEDIES: Should any Event of Default occur and be continuing, Lessor may, in order to protect its rights, pursue and enforce, alternatively, successively and/or concurrently, any one or more of the following remedies:
(1) recover from Lessee all accrued and unpaid Lease Charges and other amounts due and owing on the date of the default;
(2) retake possession of the Equipment;
(3) require Lessee to deliver the Equipment to a location designated by Lessor;
(4) proceed by court action to enforce performance by Lessee of its obligations associated with this Lease Agreement;
(5) terminate the applicable Lease Schedule(s) and/or terminate this Lease Agreement; and/or
(6) pursue any other remedy Lessor may otherwise have, at law, equity or under any statute, and recover damages and expenses (including attorneys’ fees) incurred by Lessor by reason of the Event of Default.
Lessor’s pursuit and enforcement of any one or more remedies shall not be deemed an election or waiver by Lessor of any other remedy. Lessor shall not be obligated to sell or re-lease the Equipment. Any sale or re-lease may be held at such place or places as are selected by Lessor, with or without having the Equipment present. Any such sale or re-lease, may be at wholesale or retail, in bulk or in parcels. Time and exactitude of each of the terms and conditions of this Lease Agreement are hereby declared to be of the essence.
14. LIMITATION OF LIABILITY:
A. IN NO EVENT SHALL LESSOR BE LIABLE FOR, AND LESSEE EXPRESSLY RELEASES, INDEMNIFIES, AND HOLDS HARMLESS LESSOR FROM AND AGAINST ANY AND ALL LIABILITY FOR PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING IN FAVOR OF LESSOR GROUP OR CLIENT GROUP, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, BUSINESS INTERRUPTION, DOWNTIME, LOSS OR INABILITY TO USE PROPERTY OR EQUIPMENT, LOSS OF WELL, RESERVOIR/UNDERGROUND DAMAGE, LOSS OF OIL, GAS OR OTHER MINERALS, DAMAGES AND EXPENSES DUE TO BLOW OUT, AND DAMAGES OR EXPENSES DUE TO POLLUTION, REGARDLESS OF FAULT INCLUDING THE SOLE, JOINT OR CONCURRENT FAULT OR NEGLIGENCE OF SELLER OR THIRD PARTIES.
B. Lessee’s aggregate recovery from all members of the Lessor Group for any claim in any way arising from or related to the Equipment or to this Lease Agreement shall not exceed the rent paid by Lessee for the Equipment at issue; irrespective of the nature of the claim, whether in contract, tort, warranty, strict liability, product liability or otherwise and REGARDLESS OF FAULT whether arising in whole or in part from the negligence of the Lessor Group.
C. IF AND TO THE EXTENT ANY PAYMENT REQUIRED TO BE MADE PURSUANT TO THIS AGREEMENT OR DAMAGE LIMITATION SET FORTH HEREIN IS DEEMED TO CONSTITUTE LIQUIDATED DAMAGES, THE PARTIES ACKNOWLEDGE AND AGREE THAT SUCH DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THAT SUCH PAYMENT IS INTENDED TO BE A REASONABLE ESTIMATION OF THE AMOUNT OF SUCH DAMAGES AND NOT A PENALTY.
D. LESSEE ACKNOWLEDGES AND AGREES THAT THE LIABILITY LIMITATIONS SET FORTH IN THIS SECTION 14 ARE ESSENTIAL ELEMENTS OF THE LEASE AGREEMENT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS LEASE AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
15. CATASTROPHIC LOSS INDEMNIFICATION. LESSEE SHALL BE LIABLE FOR, AND SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS LESSOR, ITS AFFILIATES OR ITS OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS OR REPRESENTATIVES (“LESSOR GROUP”) FROM AND AGAINST ANY AND ALL CLAIMS WHICH ARISE OUT OF THE PERFORMANCE OF THE LEASE AGREEMENT TO THE FOLLOWING: (I) LOSS OF OR DAMAGE TO ANY WELL OR HOLE OR ANY LESSEE OR THIRD PARTY OIL AND GAS PRODUCTION FACILITIES; (II) RESERVOIR SEEPAGE OR POLLUTION ORIGINATING UNDERGROUND OR FROM THE PROPERTY OF LESSEE OR ANY THIRD PARTY HOWSOEVER, (III) BLOW-OUT, FIRE, EXPLOSION, CRATERING OF ANY WELL OR RESERVOIR OR ANY OTHER UNCONTROLLED WELL CONDITION (INCLUDING THE COSTS TO CONTROL A WILD WELL AND THE REMOVAL OF DEBRIS); (IV) DAMAGE TO OR ESCAPE OF PRODUCT, OR SUBSTANCE FROM ANY FACILITY, INCLUDING ANY PIPELINE OR OTHER SUBSURFACE FACILITY; AND/OR (V) BODILY INJURY, PROPERTY DAMAGE AND ANY RELATED DAMAGES TO LESSEE OR THIRD PARTIES. IF, AFTER LESSEE HAS BOTH DEFENDED ANY SUCH CLAIM AND SUCH CLAIM HAS BEEN DISPOSED OF, IT IS JUDICIALLY DETERMINED THAT THE INJURY, DEATH OR PROPERTY DAMAGE WAS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A MEMBER OF LESSOR’S SUPERVISORY OR MANAGEMENT PERSONNEL, LESSOR WILL REIMBURSE LESSEE FOR ITS PROPORTIONATE SHARE OF THE DEFENSE COSTS AND WILL BE LIABLE FOR ITS PROPORTIONAL SHARE OF THE JUDGMENT.
16. CONFIDENTIALITY: Except as otherwise provided in this Lease Agreement, Lessee agrees that any and all information associated with the Equipment (including but not limited to Lessor’s technical data), Lessor or its affiliates that is not otherwise publicly available (“Confidential Information”) that is disclosed to or received by Lessee (i) shall be treated as Lessor’s confidential, proprietary, and trade secret information (with Lessor reserving all rights to its Confidential Information); (ii) shall be held by Lessee in strict confidence, (iii) shall be used by Lessee only for purposes of this Lease Agreement, and (iv) that no Confidential Information, including without limitation the provisions of this Lease Agreement, shall be disclosed by Lessee without the prior written consent of Lessor. Lessee shall safeguard Confidential Information with at least the same degree of care (which shall always be at least a reasonable amount of care) that it uses to safeguard its own confidential, proprietary, and trade secret information.
17. COSTS AND ATTORNEYS’ FEES: It is understood and agreed that in the event either party institutes suit against the other to enforce any right, duty, obligation or liability arising from or incidental to the terms and conditions of this Lease Agreement, then the prevailing party shall be entitled to recover reasonable attorneys’ fees, court costs, and expenses related thereto. Further, in the event of any Event of Default, including a bankruptcy proceeding, arbitration, mediation, counter-claim, action (whether legal or equitable), appeal or otherwise, whether initiated by Lessor or Lessee (or a debtor-in-possession or bankruptcy trustee), which arises out under, or is related in any way to this Lease Agreement or any other document, agreement or instrument executed pursuant hereto or in connection herewith, or any governmental examination or investigation of Lessee, which requires Lessor’s participation (individually and collectively, the “Default Claim”), Lessee, in addition to all other sums which Lessee may be called upon to pay under the provisions of this Lease Agreement, shall pay to Lessor, on demand, all costs, expenses and fees paid or payable in connection with the Default Claim, including, but not limited to, attorneys’ fees and out-of-pocket costs, including travel and related expenses incurred by Lessor or its attorneys.
18. LESSOR’S PERFORMANCE OPTION: Should Lessee fail to make any payment or to do any act as provided by this Lease Agreement, then Lessor shall have the right (but not the obligation), without notice to Lessee of its intention to do so and without releasing Lessee from any obligation hereunder to make or to do the same, to make advances to preserve the Equipment or Lessor’s title thereto, and to pay, purchase, contest or compromise any insurance premium, encumbrance, charge, tax, lien or other sum which in the judgment of Lessor appears to affect the Equipment, and in exercising any such rights, Lessor may incur any liability and expend whatever amounts in its absolute discretion it may deem necessary therefor. All sums so incurred or expended by Lessor shall be due and payable by Lessee within thirty (30) days of notice thereof.
19. QUIET POSSESSION AND INSPECTION: Lessor hereby covenants with Lessee that Lessee shall quietly possess the Equipment subject to and in accordance with the provisions hereof so long as Lessee is not in default hereunder; provided, however, that Lessor or its designated agent may, at any and all reasonable times during business hours, enter Lessee’s premises for the purposes of inspecting the Equipment and the manner in which it is being used.
20. ASSIGNMENTS: This Lease Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Lessee, however, shall not assign this Lease Agreement or sublet any of the Equipment to any third party without first obtaining the prior written consent of Lessor. Any such attempted assignment shall be void.
21. SURVIVAL OF OBLIGATIONS: All covenants, agreements, representations, and warranties contained in this Lease Agreement, any Lease Schedule, or in any document attached thereto, shall be for the benefit of Lessor and Lessee and their successors, any assignee or secured party. Further, all covenants, agreements, representations, and warranties contained in this Lease Agreement, any Lease Schedule, or in any document attached thereto, which by their nature are intended to survive the termination of this Lease Agreement, shall survive the execution and delivery of this Lease Agreement and the expiration or other termination of this Lease Agreement.
22. AUTHORITY: The Parties covenant and warrant that the persons executing this Lease Agreement and/or the Lease Schedule(s) on their behalf have been duly authorized to do so, and this Lease Agreement constitutes a valid and binding obligation of the Parties.
23. MISCELLANEOUS: The validity, performance, and construction of this contract shall be governed by the laws of the Province of Alberta (excluding its conflict of laws rules which would refer to and apply the substantive laws of another jurisdiction). Any suit or proceeding hereunder shall be brought exclusively in provincial or federal courts located in the Province of Alberta. Each party consents to the personal jurisdiction of the provincial and federal courts within Alberta and waives any objection that such courts are an inconvenient forum.
There are no unwritten or oral agreements between the Parties. This Lease Agreement constitutes the entire understanding and agreement between Lessor and Lessee with respect to the lease of the Equipment superseding all prior agreements, understandings, negotiations, discussions, proposals, representations, promises, commitments and offers between the parties, whether oral or written. No provision of this Lease Agreement shall be deemed waived, amended, discharged or modified orally or by custom, usage or course of conduct unless such waiver, amendment or modification is in writing and signed by an officer of each of the Parties. If any one or more of the provisions of this Lease Agreement is for any reason held invalid, illegal or unenforceable, the remaining provisions of this Lease Agreement will be unimpaired, and the invalid, illegal or unenforceable provisions shall be replaced by a mutually acceptable valid, legal and enforceable provision that is closest to the original intention of the parties.
This Lease Agreement is made subject to the terms and conditions included herein and Lessee’s acceptance is effective only to the extent that such terms and conditions are consistent with the terms and conditions herein. Any acceptance which contains terms and conditions which are in addition to or inconsistent with the terms and conditions herein will be a counter-offer and will not be binding unless agreed to in writing by Lessor. The terms used in this Lease Agreement, unless otherwise defined, shall have the meanings ascribed to them in the Lease Schedule(s) or the General Terms and Conditions of Sale.
Notwithstanding anything to the contrary contained herein, the Parties agree that this is a true lease, not a financing lease or other similar financing transaction and as such, no purchase option or right has been granted by Lessor to Lessee and Lessee in agreeing to return the Equipment to Lessor upon termination or expiration of this Lease Agreement.
25. COMPLIANCE WITH LAWS. The parties shall abide by all applicable laws and regulations in all activities associated with this Lease Agreement, including the applicable export license regulations of the respective country(ies).
26. RIGHT OF REPOSSESSION: LESSEE ACKNOWLEDGES THAT, PURSUANT TO SECTION 13 HEREOF, LESSOR HAS BEEN GIVEN THE RIGHT TO REPOSSESS THE EQUIPMENT SHOULD LESSEE BECOME IN DEFAULT OF ITS OBLIGATIONS HEREUNDER. LESSEE HEREBY WAIVES THE RIGHT, IF ANY, TO REQUIRE LESSOR TO GIVE LESSEE NOTICE AND A JUDICIAL HEARING PRIOR TO EXERCISING SUCH RIGHT OF