1. These Terms and Conditions for Purchase of Goods and Services (“Conditions”) shall apply to the purchase of products and/or services (“Products” and/or “Services”, jointly “Deliverables”) by any SOS Sand Technology, Inc. (“SOS” or “Buyer”) from SOS’ Seller (“Seller”) except to the extent that the purchase is subject to a separate written agreement agreed upon and executed by both parties. Supply of Deliverables shall solely be governed by (i) these Conditions, SOS’ purchase order (“Purchase Order”) and related documentation for the given transaction, or (ii) a separate written agreement agreed upon and executed by both parties; either of the foregoing constituting the full contract (“Contract”) between SOS and Seller for the supply of Deliverables.
2. CONTRACT ACCEPTANCE: These Conditions shall supersede and exclude all terms and conditions of Seller which may appear or be referred to on any proposal, quotation, acknowledgement, confirmation, delivery order, invoice or other document in any form issued by Seller. Seller shall supply Deliverables in accordance with these Conditions. Seller shall notify Buyer in writing of its objections of Conditions within five (5) days from receipt of Buyer’s purchase order. Seller’s standard terms to purchase will not be considered a counteroffer to Buyer’s terms and conditions of sale. The failure of Seller to object to any provision in conflict herewith whether contained on Buyer's purchase order or otherwise shall not be construed as a waiver of the provisions hereof nor as an acceptance thereof.
3. QUOTATIONS AND PRICES: The price will be as set out in the Purchase Order. Prices are deemed to be inclusive of carriage, packing, customs duties, fees, taxes and any other charges. Invoices for Products shall be submitted upon delivery of Products and invoices for Services upon acceptance of Services. The payment term is sixty (60) days net from the date of invoice, such date not to precede the date of delivery. SOS is entitled to withhold payment if Seller has not supplied Deliverables in full quantities and/or if any of Deliverables does not strictly conform to the specifications and other requirements specified in Contract.
4. TAXES: Any tax or other charge imposed by law on the sale or production of goods or the performance of services shall be paid by the Buyer. unless the law specifically provides that such payment must be made by Seller, in which case Buyer shall reimburse Seller for such payment as part of the purchase price. Custom duties, consular fees, insurance charges and other comparable charges will be borne by Buyer.
5. TRANSPORTATION, SHIPPING SCHEDULE AND DELIVERY: The delivery times and places for Deliverables shall be as set out in Contract. Any change in the time or place of delivery is subject to Buyer’s prior written approval. SOS is not obliged to take any Products into its possession before the time of delivery. Unless otherwise stated in Contract, the delivery term shall be EX Works (Incoterms 2010). If, under the terms of this Contract, Seller is to secure or arrange the transportation, Seller shall deliver the Goods on first class transportation vehicle owned and/or operated by carrier(s) of financial standing and of a type normally used for the transport of goods of the same type as the Goods. If Seller is obligated to procure and maintain insurance coverage with carriers under this Contract, it shall, at its sole expense, obtain and maintain insurance as agreed in this Contract and furnish to Buyer with the certified copies of all insurance policies or other evidence showing compliance with those insurance requirements within five (5) days of Buyer's request. Immediately after the completion of the loading of the Goods, Seller shall provide Buyer with the original bill of lading or other carrier receipt for each shipment or delivery in accordance with the Buyer's instruction and with a written notice of shipment or delivery, showing the number of this Contract, the name of the transportation vehicle, the port of shipment or destination of delivery, a description of the Goods and packing, the quantity loaded, the invoice amount and other essential particulars. Where quantities and/or delivery schedules are not specified, Seller shall deliver the Goods in such quantities and times as Buyer may direct in subsequent releases. Title to the Goods shall pass to Buyer at the time of delivery; provided, however, that if the Buyer is required to make one or more payments to Seller prior to delivery, title to the Goods shall pass to Buyer on payment of the first installment by Buyer.
6. FORCE MAJEURE: Neither party shall be liable for a failure to fulfil its obligations under these Conditions or any Contract when such failure is due to Force Majeure. The party affected by Force Majeure shall, without delay, notify the other party in writing of the occurrence of Force Majeure specifying the nature of such occurrence. In case Force Majeure lasts for a consecutive period of more than three (3) months, each party shall have the right to terminate the affected Contract by giving a written notice of termination to the other party.
7. RE-SCHEDULING, CANCELLATIONS AND TERMINATION: Buyer reserves the right, upon written notice to Seller at any time, (a) to terminate this Contract or cancel the purchase order therefor, in whole or in part, for Buyer's convenience and/or (b) to make changes in any or all of the following: (i) specifications, descriptions, samples, drawings, and other data furnished or designated by Buyer to Seller (collectively "Specifications") with respect to the manufacture, procurement or supply of any Goods or performance of any Services; (ii) method of shipment or packing of any Goods or performance of any Services; (iii) place of delivery of any Goods or performance of any Services. If delivery of Goods or performance of Services is not made in whole or in part within the time specified in this Contract or, if no time is so specified, within a reasonable time after the date of this Contract, Buyer reserves the right to reject such Goods and/or Services, without prejudice and in addition to any other rights and remedies that Buyer may have. Any provisions for delivery of Goods by installments shall not be construed as making the obligations of Seller severable. In the event of termination under Section 7(a), Seller shall immediately stop a shipment of Goods or performance of Services hereunder. Subject to the terms of a Purchase Order, Buyer shall pay (a) the costs incurred prior to the termination for Services performed, (b) reasonable charges Seller can demonstrate, to the satisfaction of Buyer, that have resulted from the termination, and (c) reasonable cancellation charges incurred by the Seller and any reasonable loss on outstanding commitments for personal services that the Seller is unable to cancel; provided, that the Seller exercised reasonable diligence terminate or divert such commitments to other operations. Seller shall not be paid for any Work performed or costs incurred, which reasonably could have been avoided. In the event of a change of control of Seller, SOS may immediately terminate Contract in whole or in part by written notice to Seller.
8. CONFIDENTIALITY: Seller shall not disclose or use, for any other purpose than the fulfilment of Contract, any information related to Contract or the existence of Contract without SOS’ prior written approval. All drawings, technical documents, tooling, data, software and other material provided by SOS to Seller and/or produced by Seller for SOS are considered SOS Confidential Information and remain and/or become the property of SOS, unless otherwise agreed in writing.
9. INTELLECTUAL PROPERTY RIGHTS: SOS Intellectual Property Rights include SOS Confidential Information, patents, invention disclosures, trademarks, tradenames, copyrights, trade secrets, and know-how. Each party shall retain its pre-existing Intellectual Property Rights. SOS Intellectual Property Rights in any SOS-specific Products and any specifications issued by SOS shall be retained by SOS. Seller shall have a non- exclusive right to use the specifications issued by SOS and other material and documentation protected by SOS Intellectual Property Rights solely for the purposes of manufacturing and/or supplying Products for SOS during the term of Contract. Any improvement in SOS Intellectual Property Rights, whether the improvement was created by Seller, SOS, or jointly, shall be assigned to SOS.
10. WARRANTIES: The Seller hereby warrants that all Products shall be free from defects in material and workmanship and in strict conformity with the specifications and requirements set out in Contract for a period of twelve (12) months from the date of delivery. If any of Products does not meet the warranty, Seller shall either (i) promptly supply replacement Products to SOS at Seller’s sole risk and expense, or (ii) promptly repair Products at Seller’s sole risk and expense. The Seller warrants that all Services shall be performed in a workmanlike manner with care and skill at least equal to that considered standard in the relevant industry and in strict conformity with the specifications and requirements set out in Contract. In the event that Seller fails to perform Services in accordance with the specifications and requirements set out in Contract, Seller shall, upon SOS notice, remedy the deficiency without delay. Seller’s liability under this Section shall apply to defects which appear within a period of twelve (12) months after the Services were performed. If Seller fails to remedy any defects in Deliverables within a reasonable time period, SOS has the right to (i) deduct the value of the defective Deliverables from any invoice of Seller, or (ii) be refunded for the defective Deliverables by Seller, or (iii) repair the defective Deliverables or have the defective Deliverables repaired by a third party at Seller’s risk and expense.
11. LABOR STANDARDS: Seller is notified that these products may be subject to be produced in accordance with all applicable requirements of Section 6, 7 and 12 of the Fair Labor Standards Act as amended and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.
12. INSPECTION: Inspection requirements will be included in Buyer’s purchase order or Contract. Unless otherwise agreed in writing, final inspection and acceptance of products must be made at Seller's plant or other shipping or receiving point designated by Buyer. At any time after execution of Contract, Buyer's representatives may inspect product and request quality certification documentation at the Seller's plant or shipping point during working hours prior to shipment in such manner as will not interfere with operations and at no costs to Buyer.
13. DELIVERY AND ACCEPTANCE: Delivery shall be in accordance with the requirements in the Purchase Contract, provided, in the event Buyer is unable to accept delivery upon completion of the manufacture of the Goods in accordance with such requirements, Buyer agrees that title and risk of ownership shall pass to Buyer on date of Seller's invoice. Seller shall retain custodial risk of loss until delivery is made in accordance with such requirements.
14. INDEMNIFICATION: Buyer Group means: Buyer, its parent (if any), subsidiaries, affiliates, co-owners, co-venturers, partners and any entity with whom Buyer has an economic interest with respect to the Work including Buyer's customer and its and their respective employees, personnel, directors, officers, borrowed servants, representatives, agents, contractors and subcontractors (respectively and of any tier or level and who are not included within the Seller Group). Seller Group means: Seller, its parent (if any), subsidiaries, affiliates, co-owners and its and their respective employees, personnel, directors, officers, borrowed servants, representatives, agents, contractors and subcontractors (respectively and of any tier or level and who are not included within the Buyer Group). Negligence means: sole, joint or concurrent, active, passive, gross or willful misconduct.
A. (1) Seller shall release, defend, save, indemnify (collectively Indemnify) and hold Buyer Group Harmless from and against all claims, demands, losses, damages and causes of action of whatever kind or nature (collectively Claims.), for loss of or damage to the property of the members of the Seller Group even if such Claims arise from or attributable to the Negligence of the members of Buyer Group.
(2) Seller shall Indemnify and hold Buyer Group harmless from and against all Claims for the death(s) of or personal injury(ies) to members of the Seller Group even if such Claims arise from or attributable to the Negligence of the members of Buyer Group.
(3) Buyer shall Indemnify and hold Seller Group harmless from and against all Claims for loss of or damage to the property (including the Work) of the members of the Buyer Group even if such Claims arise from or attributable to the Negligence of the members of Seller Group.
(4) Buyer shall Indemnify and hold Seller Group harmless from and against all Claims for the death(s) of or personal injury (ies) to members of the Buyer Group even if such Claims arise from or attributable to the Negligence of the members of Seller Group.
(5) Buyer (on its own behalf and on behalf of Buyer Group) and Seller (on its own behalf and on behalf of Seller Group) shall Indemnify and hold each other harmless from and against any and all Claims asserted against them by or on behalf of any third party for the death(s) of or personal injury (ies) to such a third party, as well as loss (es) of or damage(s) to the property of such a third party. A third party is a person or entity not included in Buyer Group or Seller Group. It is agreed by Buyer and Seller that their respective duty of indemnity to each other with respect to Claims asserted against them by a third party pursuant to this Article 14 (A) (5) shall be limited to their respective degree of Negligence.
(6) Notwithstanding any other provision contained in this Agreement, Buyer shall Indemnify and hold the members of Seller Group harmless from and against all Claims (including clean-up costs and loss (es) of oil, gas or hydrocarbons) arising from pollution, contamination, dumping or spilling of any substance and even if arising out of or attributable to the Negligence of the members of the Seller Group.
B. INDEMNITY FOR CONSEQUENTIAL DAMAGES: UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (collectively CONSEQUENTIAL.), AS DEFINED BY THE LAWS GOVERNING THIS PURCHASE ORDER, NOR FOR ANY LOSS OF ANTICIPATED PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF USE OF EQUIPMENT OR OF ANY INSTALLATION, SYSTEM OR FACILITY INTO WHICH SELLER'S EQUIPMENT MAY BE LOCATED OR AT WHICH MEMBERS OF THE SELLER GROUP MAY BE PERFORMING WORK AND BUYER AGREES TO INDEMNIFY AND HOLD SELLER GROUP HARMLESS FROM AND AGAINST ANY CLAIMS FOR SUCH CONSEQUENTIAL DAMAGES EVEN IF ARISING OUT OF OR ATTRIBUTABLE TO THE NEGLIGENCE OF THE MEMBERS OF THE SELLER GROUP.
15. EXPORT/IMPORT/TRADECOMPLIA NCE: The Seller shall provide the Buyer with all relevant and accurate country of origin data, a harmonized schedule number and export classification number or any other comparable identification number with respect to the goods, services, software or technology to be supplied hereunder (collectively, “Items"). Buyer acknowledges that this information will be relied upon by the Seller to determine whether such Items can be supplied in compliance with all applicable export control, import control, sanctions, trade and customs laws. Buyer’s performance of this sale transaction is expressly conditioned upon compliance with all applicable restrictions and licensing requirements. Seller agrees to abide by any restrictions or conditions respecting the import, export, re-export, or other transfer of the Items that are in effect now, or are hereafter imposed by the U.S Government or other applicable jurisdictions. These restrictions and conditions include, but are not limited to: (a) restrictions on the export, re-export, or transfer of the Items, whether “as is’ or as incorporated into other products, to entities, organizations, persons or locations that are subject to prohibitions under economic sanctions or export laws; (b) licensing of any export, re-export, or transfer by relevant government authorities; (c) record keeping requirements on any export, re-export, or transfer. The Seller agrees that it will take the necessary steps to ensure its employees and service providers act in accordance with applicable laws, and assumes full responsibility for their actions with regard to legal compliance with export control, sanctions, trade, and customs laws. Any violation of this section by Seller shall be deemed a material breach of the sale transaction, and Seller shall defend, indemnify and hold Buyer harmless from any costs, expenses, fines, penalties or loss arising from its failure to comply with applicable laws.
16. CHOICE OF LAW AND ARBITRATION: THIS CONTRACT IS DEEMED ENTERED INTO AND IS GOVERNED BY THE LAWS OF TEXAS. ALL CLAIMS, DISPUTES, AND CONTROVERSIES ARISING OUT OF OR RELATING TO THIS CONTRACT, OR THE BREACH OF THIS CONTRACT, ARE, IN LIEU OF COURT ACTION, SUBMITTED TO ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION, AND ANY JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION OF THE CLAIM, DISPUTE OR CONTROVERSY. THE SITE OF THE ARBITRATION IS HOUSTON, TEXAS, UNLESS ANOTHER SITE IS MUTUALLY AGREED BETWEEN THE PARTIES. THE PARTIES AGREE THAT ANY PARTY TO THE ARBITRATION IS ENTITLED TO DISCOVERY OF THE OTHER PARTY AS PROVIDED BY THE FEDERAL RULES OF CIVIL PROCEDURE, BUT ANY DISCOVERY MUST BE COMPLETED WITHIN FOUR MONTHS FROM THED ATE THE DEMAND FOR ARBITRATION IS FILED WITH THE AMERICAN ARBITRATION ASSOCIATION