NOTICE: The sale of any Goods or Services by SOS Sand Technology, Incorporated (“SOS-STI”) is expresslyconditioned on Buyer's assent to these Terms and Conditions. Any acceptance of SOS-STI’s offer is expresslylimited to acceptance of these Terms and Conditions. SOS-STI hereby rejects any terms or conditions proposedby Buyer, whether or not contained in any of Buyer’s business forms (including any purchase order).
1. DEFINITIONS. In addition to terms defined elsewhere in the Agreement, the following terms shall have themeanings specified below when capitalized throughout the Agreement:
1.1 “Applicable Law”: Any law, statute, rule, order, or ordinance of the United States, or any other country,state, governmental agency or authority, municipality or subdivision thereof, where any Goods or Services areprovided under this Agreement.
1.2 “Buyer”: Any party who agrees to purchase Goods or Services from SOS-STI as indicated on a PurchaseOrder or Order Acknowledgment.
1.3 DEFINITIONS. In addition to terms defined elsewhere in the Agreement, the following terms shall have themeanings specified below when capitalized throughout the Agreement:
1.4 "Contract": The contract agreement signed by both parties, or the Purchase Order issued by Buyer andaccepted by SOS-STI in writing, for the sale of Goods or Services, together with these Terms and Conditions,SOS-STI’s final quotation, the agreed scope(s) of work, and SOS-STI’s Order Acknowledgement. In the event ofany conflict, these Terms and Conditions shall take precedence over other documents included in the Contract.
1.5 “Counter Parts and Electronic Documents”: This Contract and all ancillary documents may be executed inone or more counterparts, each of which will be deemed to be an original copy of the Contract and all of which,when taken together, will be deemed to constitute one and the same Contract. A facsimile, e-mail or otherelectronically delivered document, electronic signature, or digital signature of the Parties shall be deemed toconstitute original documents or signatures by the Parties and shall bind the Party sending. Each Party agreesto be bound by its facsimile, e-mail or other electronically delivered documents, electronic signature or digitalsignature and shall accept the facsimile, e-mail or other electronically delivered documents, electronic signature,or digital signature of the other Party as if the original had been received.
1.6 “Days”: Refers to calendar Days.
1.7 “Deliverable(s)”: Any of the Goods or Services identified in a Purchase Order and acknowledged by SOS-STIfor delivery or provision to Buyer.
1.8 “Documents” or “Documentation”: Refers to both electronic and written material supporting the terms of aspecific transaction.
1.9 “Goods.” All tangible things, including equipment, parts, materials, supplies, software, and other speciallymanufactured good, ordered by the Buyer from SOS-STI and furnished under this Contract.
1.10 “Information”: Includes, but is not limited to, all data, designs, drawings, specifications, and otherinformation in any form, revealed or disclosed in any form or manner to Buyer by SOS-STI, including but notlimited to information relating to SOS-STI’s past, present, and future research, development, business activities,proprietary products, materials, services, and other technical information which SOS-STI may utilize in providingGoods or Services to Buyer, whether the Information is written, oral, electronic, visual, graphic, photographic,observational, or otherwise.
1.11 “Intellectual Property”: All confidential or proprietary information or rights, including inventions, ideas,trade secrets, computer programs, formulae, industrial processes, business plans and strategy, data, materials,know-how, patents, design patents, patent and design applications, registered designs, copyrights, trademarksand all similar results of intellectual effort, whether developed, owned by or licensed , and any matter in whichan Intellectual Property Right Exists.
1.12 “Intellectual Property Right(s)”: Any legally enforceable rights, worldwide, under statute or common law,in respect to inventive subject matter or original works of authorship, including, but not limited to, patents andinventions, copyrights, designs, trademarks, trade secrets, confidential information, data, technology, technicalinformation, and other information, regardless of when conceived.
1.13 “Order Acknowledgment”: Written acceptance issued by SOS-STI to Buyer confirming Buyer’s PurchaseOrder.
1.14 “Party”: Either Buyer or SOS-STI individually, and collectively referred to as “Parties.”
1.15 “Products”: All Goods and Services specifically offered by SOS-STI for sale to Buyer as identified in theContract.
1.16 “Price schedule”: The portion of the SOS-STI’s quotation or Order Acknowledgement that sets out theDeliverables and the associated price(s).
1.17 “Purchase Order”: The document or digital electronic data transaction setting forth Buyer’s requirementsfor the purchase of Goods or Services. The Purchase Order will specify the type of Goods and/or Services,provide details of quantity and quality and delivery time and shall reference any SOS-STI quotation number. Avalid Purchase Order may be written or electronic in form.
1.18 “Quotation”: SOS-STI’s statement identifying the Products and Services, together with any quantity, price,delivery schedule, and/or other terms and conditions (in addition to or different from these Terms andConditions), offered by SOS-STI for sale to Buyer.
1.19 “SOS-STI”: SOS Sand Technology, Incorporated.
1.20 “Services”: Any express task, activity, labor or service furnished by SOS-STI under the Contract.
1.21 “Terms and Conditions”: These Standard Terms and Conditions for Sale of Goods and Services, --International Sales include any relevant addenda, attachments or exhibits, together with any modifications oradditional provisions specifically stated in SOS-STI’s final Quotation, Order Acknowledgment, or specificallyagreed upon by the Parties in writing.
2. CONTRACT FORMATION:
2.1 Quotations: Unless otherwise specified in SOS-STI’s Quotation, the Quotation shall expire thirty (30) daysfrom its date and may be modified or withdrawn by SOS-STI before receipt of Buyer’s acceptance.
2.2 Buyer’s Purchase Order: All purchases of Goods or Services by Buyer shall be made pursuant to a writtenPurchase Order as defined herein. Buyer’s standard terms to purchase will not be considered a counteroffer toSOS-STI’s Terms and Conditions of Sale. The failure of SOS-STI to object to any provision in conflict with theseStandard Terms and Conditions, whether contained on Buyer's Purchase Order or other documents shall not beconstrued as a waiver of SOS-STI’s Terms and Conditions nor as an acceptance of Buyer’s terms.
2.3 Acceptance of Purchase Orders: No Buyer Purchase Order shall be binding on SOS-STI until an OrderAcknowledgment is issued by SOS-STI to Buyer. SOS-STI shall have no liability to Buyer for Purchase Orders thatare not accepted. Shipment against a Purchase Order shall be deemed to constitute SOS-STI’s acceptancethereof, subject to these Terms and Conditions. All Purchase Orders shall be subject to these Terms andConditions, whether or not the Purchase Orders so state. Purchase Orders accepted by SOS-STI may not becanceled or modified by Buyer without the prior written consent of SOS-STI, except as provided in Section 9.
2.4 Modification: These Terms and Conditions shall supersede and exclude all terms and conditions of Buyerwhich may appear or be referred to on any request for proposal, Purchase Order, amendment to it, or otherdocument in any form issued by Buyer. No course of dealing, usage of trade, or course of performance shall berelevant to explain or supplement any of these Terms and Conditions. No agreement or understanding, oral orwritten, purporting to modify these Terms and Conditions shall be binding on SOS-STI unless it is made inwriting, specifically stating that it is a modification of these Terms and Conditions, and it is signed by SOS-STI’sauthorized representative.
3.1 Contract Price: The price for the Products sold pursuant to the Contract shall be contained in the SOS-STIQuotation and, unless otherwise specified, are firm upon acceptance by Buyer prior to the Quotation expirationdate. The Contract Price does not include duties, insurance, freight, or handling charges, or the amount of anyBuyer Taxes, which shall be paid by Buyer. If Buyer deducts or withholds Buyer Taxes, Buyer shall pay additionalamounts so that SOS-STI receives the full Contract Price without reduction for Buyer Taxes. Buyer shall provideto SOS-STI, within thirty (30) days of payment, official receipts from the applicable governmental authority fordeducted or withheld taxes.
3.2 Price Changes: If Buyer delays shipment beyond the date specified in SOS-STI’s Order Acknowledgment,prices are subject to increase equal to the percentage increase in SOS-STI's prices during the period of delay. Ifthe price is omitted in the Contract, the Products shall be billed at the higher of the price last paid, quoted, orthe prevailing market price. Unless otherwise provided in the Quotation, price is based on delivery in accordancewith the “Delivery” section below.
4.1 Except as otherwise specified in the Contract, Buyer shall pay SOS-STI for the Products by paying all invoicedamounts in U.S. dollars (USD), without set-off, within thirty (30) days of the date of the SOS-STI’s invoice. Creditterms may be changed or withdrawn at any item at the sole discretion of the SOS-STI. Buyer shall pay a latepayment fee on any account that is more than thirty (30) days past due at a rate equal to the lesser of (1) 1.5% per month, or (2) the maximum rate permitted by applicable law on all overdue amounts until the amounts arepaid.
4.2 If requested by SOS-STI, Buyer shall at its expense establish and keep in force payment security in the formof an irrevocable, unconditional, sight letter of credit, or bank guarantee allowing for pro-rata payments asProducts are Shipped as services are performed, plus cancellation or termination charges and all other amountsdue from Buyer under the Contact (“Payment Security”). The payment security shall be in a form that is (a) in aform, and issued or confirmed by a bank acceptable to SOS-STI, (b) payable at the counter of such acceptableban or negotiating bank, (c) opened at least thirty (30) days prior to the earliest scheduled shipment of Productsor commencement of Services, (d) and remain open for at least ninety (90) days after the last shipment,completion of all services and SOS-STI’s receipt of the final payment required under this Contract.
4.3 SOS-STI shall not be required to commence or continue performance unless and until any required PaymentSecurity and all applicable progress payments are received by SOS-STI. For each day delay in receivingacceptable Progress Security or progress payments, SOS-STI shall be entitled to a matching extension of theschedule.
5. TAXES and DUTIES: Any sales, use, value-added taxes, duties, fees, or penalties, deficiencies or interest relatedthereto, imposed by law on the sale, transportation, delivery, production use or consumption of the goods or theperformance of services in connection with his Contract shall be paid by the Buyer, except those based on SOSSTI’s income (“Buyer Taxes”). If Buyer is exempt from sales taxes, Buyer shall provide SOS-STI a copy of theexemption certificate. The Contract Price does not include any Buyer Taxes. I12f the Goods are to be exportedafter delivery to Buyer, Buyer shall pay all applicable custom duties, consular fees, insurance charges, and othercomparable charges
6. PERFORMANCE: SOS-STI is not liable for failure or delays in delivery where the failure or delay is due to Buyer’snon-payment, or due to strikes, fires, accidents, national emergency, failure to secure materials from the usualsources of supply, or any other circumstances beyond SOS-STI's control, whether of the class of causesenumerated above or not, which prevent SOS-STI from making deliveries in the usual course of business. Uponthe occurrence of any of the above events, SOS-STI may cancel this order without any liability on SOS-STI's part.Acceptance of the goods by Buyer constitutes a waiver of all claims for delay.
7. EXPORT CONTROL: Products purchased or received under these Terms and Conditions are subject to exportcontrol laws, restrictions, regulations and orders of the United States of America. Buyer agrees to comply with allapplicable export law, restrictions, regulations and orders of the United States or foreign agencies or authorities,and shall not export, or transfer for purposes of re-export, any Product to any prohibited or. embargoed country.
8. TRANSFER OF TITLE; RISK OF LOSS; DELIVERY; SHIPPING:
8.1 Title: Title passes to Buyer upon Buyer’s payment in full for the Products.
8.2 Risk of Loss: Unless otherwise agreed in writing, risk of loss and costs for all Goods shall pass to Buyerupon delivery by SOS-STI as defined by Free Carrier FCA (Named Place) Incoterms 2020. When the namedplace is SOS-STI’s premises, the goods are delivered when they are loaded on Buyers transport. When thenamed place is another place, the goods are delivered when the goods reach the other place.
8.3 Delivery: Unless otherwise agreed in writing by the Parties, SOS-STI will deliver the Products, Free CarrierFCA (Named Place) Incoterms 2020 at the location specified in the Sales Acknowledgment (the “Delivery Location”), using SOS-STI’s standard packaging and shipping. SOS-STI shall be responsible to clear the goods forexport and provide a commercial invoice and packing list. Buyer shall be responsible for all loading costs andprovide equipment and labor reasonably suited for receipt of the Goods at the Delivery Location.
8.4.1 Shipment Schedules: Shipment schedules are given as accurately as conditions permit and SOS-STI shalluse its reasonable efforts to make shipments as scheduled but does not guarantee to do so. In the event of anyanticipated or actual delay, SOS-STI shall: (a) promptly notify Buyer in writing of the reasons for the delay andthe actions being taken to overcome or minimize the delay; and (b) provide Buyer with a written recoveryschedule. Time of delivery shall not be of the essence of the Contract nor shall SOS-STI be responsible fordeviations in meeting shipping schedules nor for any losses or damages to Buyer (or any third party) occasionedby deviations in the shipping schedule.
8.4.2 Buyer Delays: Any hold points, approvals, or the need for inspection by Buyer's representatives must beidentified by Buyer at the time of quotation (if any) and/or order placement so that the effect on the prices orshipping schedules (if any) can be taken into account. Any delay in Buyer’s performance or additional inspectionor testing required by Buyer which affects normal production sequence will be considered as extending theshipping dates accordingly.
8.4.3 Partial Shipments. SOS-STI may, in its sole discretion, without liability or penalty, make partial shipmentsof Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shippedwhether such shipment is in whole or partial fulfillment of the Order. If Buyer requires drawings, procedures,standards or similar material for approval, shipping schedules will be calculated from the time such approvalsare received by SOS-STI, since shipping schedules are based on SOS-STI having all required information and afirm order from Buyer.
9. FORCE MAJEURE: Neither party shall be liable for a failure to fulfill its obligations under the Contract whensuch failure is due to Force Majeure. The party affected by Force Majeure shall, without delay, notify the otherparty in writing of the occurrence of Force Majeure specifying the nature of such occurrence. In case of ForceMajeure lasts for a consecutive period of more than three (3) months, each party shall have the right toterminate the affected Contract by giving written notice of termination to the other party.
10. CANCELLATION: Cancellation of Orders placed by Buyer and accepted by SOS-STI can be made only withSOS-STI’s consent. Orders may be canceled, or deliveries deferred upon condition that Buyer assumesimmediate liability and makes payments to SOS-STI as follows:
10.1 Work Not Commenced: Buyer shall pay to SOS-STI a minimum booking charge of 5% of the contractprice for the Products ordered.
10.2 Work Commenced: Buyer shall pay to SOS-STI the cost, as determined by SOS-STI of (a) all work completed;(b) work in progress on the basis of percentage completed: (c) raw materials, tooling, engineering and othercancellation charges incurred on the basis of cost to SOS-STI; (d) any goods that may not be returned to theoriginal manufacturer or supplier; (e) any restocking fee on goods that may be returned to the originalmanufacturer or supplier; (f) any carrying costs associated with the Goods. Carrying costs are determinedaccording to the nature of the goods; (g) any costs associated with the provision of Services.
10.3 Payments: All cancellation charges shall be determined at the time of Cancellation and be immediatelypayable.
11. DEFERRED DELIVERIES: SOS-STI may, but is not obligated to, accept a written request by Buyer to delayshipment of any ordered Goods. If SOS-STI accepts a delayed shipment, Buyer shall pay any additional costsincurred by the delay. Should Buyer fail to provide SOS-STI acceptable shipping at the end of the delay period,SOS-STI shall have the right to cancel the Order and make a cancellation charge on the same conditions andterms of payment as outlined under “Cancellation.”
12. CONFIDENTIALITY AND INTELLECTUAL PROPERTY.
12.1 Confidentiality of Contract and Purchase and Sale Information. Buyer shall not disclose any data, contentor Information processed in the purchase and sale process, including but not limited to all Information containedin a Quotation, Purchase Order, Invoice or other document related to this Contract, except as provided herein.
12.2 Confidentiality of SOS-STI Information. SOS-STI Information that is disclosed or provided to Buyer, and allInformation produced or created by SOS-STI relating to the Products provided to Buyer by SOS-STI will be held instrict confidence by Buyer and may be used by Buyer solely for the purposes of this Contract and use ofProducts. Furthermore, no such Information will be disclosed to any third party without the prior writtenconsent of SOS-STI and may be disclosed within Buyer’s organization only on a need-to-know basis.Notwithstanding the foregoing, Buyer shall not provide SOS-STI information to any third party unless and untilsuch third party has agreed in writing to confidentiality requirements with Buyer at least as restrictive as thoseset forth herein.
12.3 Confidentiality of Buyer Information. Buyer’s Intellectual Property and certain Information produced orcreated by Buyer relating to Products provided by SOS-STO to Buyer, including but not limited to the terms andconditions of this Contract may be designated by Buyer in writing as confidential, and will be treated andprotected by SOS-STI as confidential and will not be disclosed to any third party without the prior writtenconsent of Buyer with the exception of disclosures in accordance with Section 11.5.
12.4 Disposition of Confidential Information. Within three (3) days of a request by SOS-STI at any other time,Buyer will immediately return to SOS-STI any Confidential Information provided to or produced or created bySOS-STI in connection with this Contract, including all copies of Information made by Buyer. Buyer may, uponobtaining prior written approval from SOS-STI, satisfy this requirement by providing a written certification ofdestruction of such Confidential Information. Buyer shall otherwise certify to SOS-STI in writing that Buyer hasdeleted Information from all electronic storage media on which Buyer placed it. Buyer will not publicize ordisclose the existence, content, or scope of this Contract to any third party by any means without obtaining theprior written consent of SOS-STI. Buyer shall not take any physical forms of Information from Buyer’s offices orworksites (or makes copies of them) without SOS-STI’s prior written permission.
12.5.1 The preceding obligations with respect to Confidential Information shall not apply to any Informationobtained by Buyer in connection with this Contract which: (a) is publicly known or becomes publicly knownthrough no fault of or disclosure by Buyer; (b) is given to Buyer by someone other than SOS-STI as a matter ofright and without restriction of disclosure; (c) was known to the Buyer prior to receiving the Information fromSOS-STI; (d) is developed by Buyer without reference to SOS-STI’s Information; or (e) is legally compelled to bedisclosed.
12.5.2 If Buyer receives a subpoena, order, notice, process or other legal proceeding seeking disclosure of SOSSTI’s Information, Buyer shall promptly notify SOS-STI in order to allow SOS-STI the opportunity to oppose theorder, notice, or process, or seek a protective order. If requested by SOS-STI, Buyer shall cooperate fully withSOS-STI in contesting such disclosure. Except as such demand shall have been timely limited, quashed orextended, Buyer may thereafter comply with such demand, but only to the extent required by law. Where SOSSTI obtains a protective order, nothing in this Contract shall be construed to authorize Buyer to use in anymanner or disclose SOS-STI’s Information to parties other than such governmental or judicial agency or body orbeyond the scope of the protective order.
12.5.3 Disclosures that are made to Buyer under this Contract which are specific shall not be deemed to bewithin the preceding exceptions merely because they were embraced by general disclosures that are either inthe public domain or in possession of Buyer. Also, any combination of features shall not be deemed to be withinthe preceding exceptions merely because individual features are in the public domain or the possession ofBuyer, but only if the combination itself and its principle of operations are in the public domain and thepossession of Buyer
12.6 Background Intellectual Property of SOS-STI and Buyer. To the extent that SOS-STI’s BackgroundIntellectual Property is required to permit Buyer to purchase or to use SOS-STI’s Products under this Contract,SOS-STI grants Buyer a nonexclusive license for the sole purpose of providing Products to Buyer under thisContract. Such license shall run concurrent with and terminate with this Contract. The Buyer grants to SOS-STI anon-exclusive, non-transferable, worldwide, royalty-free license to use Buyer’s Background Intellectual Propertysolely to the extent required for, and for the sole purpose of, providing Buyer with SOS-STI’s Products andincorporating them for their intended use (and/or for resale) by Buyer.
12.7 Intellectual Property. Buyer agrees to assign, and does hereby assign, to SOS-STI all right, title and interestin any invention, idea, discovery, innovation, and/or other development (hereinafter “Invention”), patentable ornot, that is made or conceived either solely by SOS-STI or jointly by SOS-STI with others exclusively in connectionwith the performance of this Contract, except if such Invention relates substantially to Buyer’s BackgroundIntellectual Property. SOS-STI will promptly disclose to Buyer any such Invention. Buyer agrees to assign, andhereby assigns to SOS-STI all rights, title and interest in any work of authorship that Buyer writes or developsexclusively in connection with the performance of this Contract, including any drawings, designs, reports,computations, calculations, working papers, and documents of every kind, including all trade secret, patent andcopyright rights relating thereto. Buyer agrees to deliver any such drawings, designs, reports, computations,calculations, working papers, and documents of every kind to SOS-STI. Buyer will, upon request by SOS-STI,execute an assignment document to evidence the assignment to SOS-STI of any patent, trade secret, copyrightor other proprietary right in such Invention, and will do anything else reasonably necessary to enable SOS-STI toperfect and protect its rights therein, including the execution of any documents deemed necessary or expedientby SOS-STI in order to apply for, obtain, and maintain Letters Patent in the United States and/or foreigncountries for any such Invention. Buyer agrees, at SOS-STI’s sole expense, to cooperate fully with SOS-STI or itsnominee: (a) in the preparation, prosecution, and maintenance of patent applications and any resulting LettersPatent; and (b) in any litigation or administrative proceedings involving any of the preceding.
12.8 Use Rights to Intellectual Property. Except for the limited use rights expressly enumerated herein, thisContract does not grant, and shall not be construed as granting, either Party a license or any rights under any ofthe other Party’s patent, trademark, copyright, or trade secret rights beyond that necessary for the purposes ofthis Contract, or the granting of any right to use the other Party’s name in connection with any proposals tothird parties.
12.9 Patents, Copyrights, Trademarks and Trade Secrets Non-Infringement Warranty. SOS-STI warrants,represents and covenants that the Products provided to Buyer under this Contract: (a) do not infringe directly orindirectly any patent, copyright, trademark, or other Intellectual Property interest of a third party; and (b) do notunlawfully include or use any trade secrets or other Intellectual Property of a third party. In relation to theprovision of Products by SOS-STI under this Contract, SOS-STI agrees to release, defend, and indemnify Buyerand hold Buyer harmless from and against any and all actions, claims, costs (including attorney fees and courtcosts), expenses, fines, losses, damages, and liabilities arising out of any alleged or actual patent, copyright, ortrademark infringement, or any improper use or misappropriation of confidential information or otherIntellectual Property. Except as provided in the foregoing, if the provision or use of any Goods or Services, or anypart thereof, provided by SOS-STI to Buyer under this Contract is held to constitute an infringement or unlawfuluse of any Intellectual Property, and the use or sale of the Goods or Services or any part thereof is enjoined,SOS-STI will, at its own expense, and as Buyer’s sole and exclusive remedy for any damage or loss in connectiontherewith, either procure for Buyer the right to continue utilizing the Products, replace the infringing Productswith a non-infringing product or process that is acceptable to Buyer, modify the Goods or Services so that theGoods or Services are no longer infringing, or, in the event the foregoing options are not possible, compensateBuyer for all of Buyer’s expenses resulting from the infringement.For purposes of this Article, any provision ofthis Contract excluding liability for consequential or other incidental damages or limiting Buyer’s liability inany way is unaffected by this forgoing provision.
13. LIMITED WARRANTIES AND DISCLAIMER:
13.1 Third Party Warranties: With respect to the Goods, design, workmanship, materials provided by a thirdparty, SOS-STI extends to and assigns to Buyer the same warranties as the manufacturer or supplier extends toSOS-STI, which shall be the sole warranty or warranties extended to Buyer with regard to the Goods.
13.2 Specially Manufactured Goods: SOS-STI warrants to the Buyer that goods of its manufacture will be freefrom defects in material or workmanship caused by SOS-STI for eighteen (18) from date of delivery, or one (1)year from date of commissioning whichever shall occur first, or except that equipment, parts, or materialsfurnished on a repair and return, overhaul, or unit exchange transaction shall carry such warranty for six (6)months from date of delivery. SOS-STI’s obligation to Buyer and Buyer's sole and exclusive remedy hereundershall be limited to, at SOS-STI's option, the repair or replacement of the defective equipment, parts, or materialswhich are returned to SOS-STI's designated facility within the warranty period, transportation charges prepaidand there determined by SOS-STI to be a warranted defect; provided however, should the defects bedetermined by the SOS-STI to be so defective as to preclude the remedying of the warranted defects byreplacement or repair, Buyer's sole and exclusive remedy shall be a refund of the purchase price less areasonable charge for any utilization by Buyer. Notwithstanding the preceding, SOS-STI shall have no obligationhereunder if the equipment parts or materials become defective in whole or in part as a result of removal,improper use, operation above capacities specified or misapplication after delivery to Buyer.
13.3 Services: All services provided by SOS-STI shall be promptly inspected and accepted by Buyer uponcompletion the work. SOS-STI warrants it will perform services supplied to Buyer in a workmanlike manner inaccordance with the (a) any specifications stated in a Purchase Order, (b) generally accepted industry practicesapplicable to the Services, (c) this Contract. All claims for defective services hereunder must be made in writingimmediately upon discovery and in any event within ninety (90) days from the date of completion of saidservices. Defective work must be held for SOS-STI's inspection. Upon submission of a claim and substantiation thereof, SOS-STI shall, at its option, either (a) repair or replace the defective work, or (b) refund an equitableportion of the contract price. This Services warranty does not extend or modify SOS-STI’s separate warranty onGoods specified in Section.
13.4 Engineering and Technical Advice: Upon request, SOS-STI may provide Buyer engineering and/or technicalinformation regarding the Goods and their uses. Buyer may request that SOS provide personnel to assist Buyerin effecting field installations and/or field service. Any such information, service or assistance so provided,whether with or without charge, shall be advisory only.
13.5 THE EXPRESS WARRANTY GRANTED ABOVE SHALL EXTEND DIRECTLY TO BUYER AND NOT TO BUYER'SCUSTOMERS, AGENTS OR REPRESENTATIVES. THE EXPRESS WARRANTY GRANTED ABOVE IS IN LIEU OF ALLOTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIEDWARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT OFINTELLECTUAL PROPERTY RIGHTS. ALL OTHER WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED BY SOS-STI.IN NO EVENT WILL SOS-STI BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE TOTAL LIABILITY OFSOS-STI FOR ANY DAMAGES HEREUNDER SHALL BE LIMITED TO THE AMOUNT PAID BY BUYER FOR THEPRODUCTS OR SERVICE PURCHASED HEREUNDER.
14. ASSIGNMENT: Buyer shall not assign its rights or obligations hereunder without the prior written consentof SOS-STI, which consent shall not be unreasonably withheld. In the event of an assignment in accordance withthe terms of this Section, the assignor shall nevertheless remain responsible for the proper performance of theContract. Any assignment not made in accordance with the terms of this Section shall be void.
15.1 SOS-STI Indemnity: SOS-STI shall indemnify and hold Buyer harmless from any and all losses, claims,liabilities, damages, obligations, liens, encumbrances, costs and expenses, including reasonable attorney fees,pretrial, trial and appellate, and court costs (collectively being “Damages”), that are suffered or incurred byBuyer or the Products, in whole or in part, from time to time, and arise as a result of any breach of thecovenants, warranties or representations of this Contract.
15.2 Buyer Indemnity: Buyer agrees to indemnify, defend and hold SOS-STI, SOS-STI’s affiliates, and theirofficers, directors, agents and representatives, and SOS-STI’s predecessors in interest, and their affiliates andrepresentatives (collectively “SOS-STI’s Indemnified Parties”), harmless from and against any and all liabilities,liens, claims, demands, losses, damages, punitive damages, costs, expenses, causes of action or judgments ofany kind or character including, without limitation, any interest, penalty, reasonable attorneys' fees and othercosts and expenses incurred in connection therewith or the defense thereof (collectively the “Claims”) whichmay arise as a result of: (a) any breach or non-performance of the covenants, warranties or representations ofthis Agreement or the Bill of Sale by Buyer; or (b) Buyer’s ownership, maintenance, use or operation of theEquipment.
16. ANTI-CORRUPTION: Buyer agrees to comply with all applicable laws, regulations, and industry standardsand professional standards of care, including, but not limited to, those of the country or countries is which Buyermay operate or in which the Products may be used, including without limitation the any applicable anti-briberyor anti-corruption laws, including, where applicable, but not limited to the U.S. Foreign Corrupt Practices Act of1977, as amended; the OECD Convention on Combating Bribery of Foreign Public Officials in InternationalBusiness Transactions and related implementing legislation and all local equivalent laws is the countries is which business is conducted. Buyer agrees to indemnify defend, and not take any action that SOS-STI from anyconsequences of any violation of any such law or requirement.
17. COMPLIANCE WITH LAWS: Each Party shall comply in all respects with all applicable legal requirementsgoverning the duties, obligations, and business practices of that party and shall obtain any permits or licensesnecessary for its operations. Neither party shall take any action in violation of any applicable legal requirementthat could result in liability being imposed on the other Party.
18. NO INDIRECT DAMAGES: Under no circumstances shall SOS-STI be liable for any special, consequential,incidental, exemplary or punitive damages (collectively “consequential damages”.), as defined by the lawsgoverning this contract, nor for any loss of anticipated profits, loss of business opportunity, loss of use ofequipment or of any installation, system or facility into which SOS-STI’s products may be located or at which SOSSTI may be performing work. buyer agrees to indemnify and hold SOS-STI harmless from and against any claimsfor such consequential damages even if arising out of or attributable to the negligence of SOS-STI.
19. CHOICE OF LAW AND DISOUTE RESOLUTION:
19.1. This contract is deemed entered into and is governed by the laws of the State of Texas, United States ofAmerica., without regard to the United Nations Convention on Contracts for the International Sale of Goods orother international treaty, rule or accord and exclusive conflict of law principals.
19.2 All claims, disputes, and controversies arising out of or relating to this contract, or the breach of thiscontract, will be, in lieu of court action, submitted to arbitration in accordance with the commercial arbitrationrules of the Rule s of Arbitration of the International Chamber of Commerce (ICC) and any judgment upon theaward rendered by the arbitrator(s) may be entered in any court having jurisdiction of the claim, dispute orcontroversy in Harris County, Texas. The site of the arbitration is Houston, Texas unless another site is mutuallyagreed between the parties. Each Party will be responsible for its own costs associated with such arbitration,including attorneys’ fees, and one-half of any arbitration fees.
19.3 Nothing in this Section shall prohibit a Party from seeking a restraining order, injunction or similar order toenforce the confidentiality provisions in Section 12.