Terms And Conditions Of Sale
These Terms and Conditions are part of the purchase order printed on the other side of this form or the purchase order attached to these Terms and Conditions (collectively "Order"). No terms or conditions, other than those stated herein, and no agreement or understanding, oral or written, in any way purporting to modify this Order, whether contained in Buyer’s purchase or shipping release form, or elsewhere, shall be binding on Swift Oilfield Supply Inc., its affiliates, parents or subsidiary entities (“Seller”) and any such attempted modifications are hereby rejected by Seller. All proposals, negotiations and representations, if any, made prior, and with reference hereto, are merged herein and superseded hereby.
1. Payment and Taxes: Payment shall be made at par in legal tender of Canadian Dollars and all charges
are payable within net 30 days of the date of invoice. The amount of compensation payable to Seller shall be that set forth in Seller’s invoice at the time services are performed, unless otherwise agreed in writing by the parties. All Orders are subject to the continued review of the Seller and subject to continuing credit approval. If, in its opinion, the financial position of the Buyer has so changed prior to delivery as to render the Seller insecure, the Seller may suspend production and/or refuse to make delivery pending satisfactory modification of the terms of payment. In the event that Buyer’s account with Seller becomes delinquent, Seller has the right to revoke any and all discounts previously applied in arriving at the net invoice price. Upon revocation, the full invoice price without discount shall become immediately due and owing and subject to collection, with interest at the maximum rate allowed by law. If in the event it becomes necessary to place the account in the hands of an attorney for collection, Buyer agrees to pay reasonable attorney’s fees incurred by the Seller. All federal, provincial, dominion, or municipal taxes now or hereafter imposed in respect to the goods sold by the Seller and/or the processing, manufacture, delivery, transportation and/or proceeds of the goods herein specified shall be for the account of the Buyer and if taxes are required to be paid by the Seller, the amount thereof shall be added to and become part of the price payable by the Buyer.
2. Delivery terms: All quotations and sales are EXW Seller’s premises (INCOTERMS 2010) unless otherwise specified on the face hereof. Seller’s responsibility ceases upon delivery to carrier and title shall transfer and risk of loss shall be borne by Buyer at that point. Any expedited or other premium transportation charges requested by Buyer will be for the account of Buyer. Prices are subject to adjustment to reflect the Seller’s prices in effect at time of order or shipment. No claims for price adjustments will be honored unless presented within one year from date of invoice. All quotations are subject prior sale, credit approval and seller acceptance of order.
3. Warranties:
a) Goods: in the event any goods manufactured by Seller and furnished hereunder are found to be defective or otherwise fail to conform to the conditions of this Order, Seller will, at its option, either: (1) replace the goods at the delivery point specified herein, (2) repair the goods, or (3) refund the purchase price. Buyer's remedies with respect to goods manufactured by others and furnished hereunder that are found to be defective or otherwise not in conformity with the Order are limited to any warranties extended and honored by the manufacturer. Buyer's remedies are limited as aforesaid regardless of whether Buyer's claim is based on principles of contract or tort. All claims must be made promptly following delivery of the goods to the Buyer within two years from date of delivery. Seller must be given a reasonable opportunity to investigate. NEITHER SELLER NOR THE MANUFACTURER OF THE GOODS SHALL
HAVE ANY LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR OTHER CLAIMS ARISIN FROM ANY BREACH OF CONTRACT OR TORT COMMITTED BY SELLER OR THE MANUFACTURER OF
GOODS RESOLD BY SELLER. Seller's total cumulative liability in any way arising from or pertaining to any products sold or required to be sold under this Order, shall not in any case exceed the purchase price paid by Buyer of such product.
b) Services: with respect to any work performed on goods furnished by Buyer (including but not limited to repairing, welding, machining, fabricating, heat treating, and forging) Seller agrees to make every effort to perform such work in accordance with Buyer's specifications. Claims must be made promptly following delivery of the goods to Buyer, but must be made within three months from the date the same is put into operation and, in any event, not more than one year after date of delivery. Seller must be given a reasonable opportunity to investigate. It is understood and agreed that the reports, records, etc., made by Seller as to the results of its services shall be the good faith opinions only of Seller and are not to be construed as warranties or guarantees, express or implied, of quality, classification, merchantability or fitness of purpose. SELLER SHALL HAVE NO LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES ARISING FROM ANY BREACH OF CONTRACT OR TORT.
c) Rental: Buyer confirms that it has selected the Rental equipment and each part thereof on the basis of its own sole judgment and expressly disclaims reliance upon any statements, representations or warranties made by Seller, and Buyer acknowledges that Seller is not a manufacturer, vendor or consultant of any part of the Rental equipment. Buyer specifically understands and agrees that Buyer’s sole and exclusive remedy for breach of warranty, tortious conduct, or any other cause of action against Seller or Seller’s officers, agents, or employees, if any, shall be limited to the repair or replacement of the Rental equipment or any defective parts at Seller’s discretion and at Seller’s regular place of business or at such other place of business designated by Seller during normal working hours.
d) THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. THIS WARRANTY IS GIVEN EXPRESSLY AND IN PLACE OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING THOSE FOR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. BUYER ACKNOWLEDGES AND AGREES THAT BUYER TAKES SOLE RESPONSIBILITY FOR THE SELECTION OF AND SPECIFICATIONS FOR THE GOODS AND THEIR FITNESS FOR ANY PURPOSES INTENDED BY THE BUYER OR BUYER’S CUSTOMER(S).
4. Cancelation and cancelation fees: Orders placed by Buyer and accepted by Seller may be canceled only with the written consent of Seller and will subject Buyer to cancellation charges. Any and all of Seller’s documents, drawings and like information shall be returned to Seller upon Buyer’s request for cancellation. No Orders may be canceled subsequent to delivery and/or shipment, whichever occurs first. As estimated actual damages, Buyer agrees to pay Seller the greater of Seller's actual costs incurred prior to cancellation plus a reasonable profit, or the following minimum cancellation charges: a) 20% of Order value if canceled thirty (30) or more days prior to the original delivery/shipment date; b) 50% of the Order value if canceled thereafter; or, c) 100% of the Order value of any non-standard items or specially ordered item, which are items not built for stock or built to Buyer specifications. For rental, minimum rental charges as stated in the Seller proposal will apply. Buyer shall verify the amount of the cancellation charges prior to canceling an Order.
5. Patent infringement liability: Seller shall indemnify Buyer from claims arising from patent infringement only when the basis of such claim is for goods: (a) solely manufactured by Seller and (b) used in their normal manner.
6. Liens: Seller shall not protect, defend, indemnify, release or hold harmless Buyer from any claim or lien attaching to the property or equipment of Buyer arising out of Buyer’s failure to pay Seller.
7. Force Majeure: In the event of any delay in Seller’s performance due to fire, explosion, strike, shortage of utility, facility, material or labor, delay in transportation, breakdown or accident, compliance with any other action taken to carry out the intent or purpose of any law or regulation, or other causes beyond Seller’s control, Seller shall not be liable for any damages or losses due to any such causes. Seller uses reasonable efforts to ship within the time specified, but cannot guarantee timely delivery and shall not be liable for any damages caused by delay in delivery, irrespective of the cause of delay.
8. Confidentiality: Buyer agrees to keep confidential all Seller proprietary and confidential information provided whether patentable, copyrightable, or not. Buyer acknowledges that Seller’s ownership of, development of, and protection of its proprietary and confidential information is an integral part of Seller’s business. Buyer agrees that it will not use or allow the use of any technology or know-how supplied by Seller, or otherwise obtained from Seller to replicate Seller’s equipment and Buyer agrees that it will not attempt to analyze, reverse-engineer, or otherwise ascertain the composition or manufacture of Seller’s products. All materials, products, technology, know-how, and intellectual property developed by, created by, or invented by Seller as a part of this Order are and shall remain the sole and exclusive property of Seller without limitations.
9. Inspection: inspection of goods, if agreed to, must be made at Seller’s warehouse or point of manufacture and such inspection and acceptance shall be final. Reasonable facilities will be afforded to inspectors representing Buyer to make such inspection and to apply tests in accordance with the specifications to which Seller has previously agreed, prior to shipment from warehouse or plants of Seller or Seller’s suppliers. Any inspections are at Buyer’s sole cost and risk.
10. Governing Law and Dispute Resolution: Any clause required to be included in an order of this type by any applicable law or administrative regulation having the effect of law shall be deemed to be incorporated herein. It is hereby certified that the goods manufactured by Seller are produced in accordance with the Safety Codes Act. Seller and Buyer, in the interest of certainty, stipulate that the laws of the province of Alberta, shall in all instances govern the interpretation of this Order and the rights of Seller and Buyer under this Order, without regard, however, to any choice of laws or conflicts of laws provisions which would direct the application of the laws of another jurisdiction. Any dispute or controversy between the parties arising out of or related to this Order or the provision of services contemplated hereunder shall be resolved in the courts of Edmonton, Alberta.
11. Indemnity: the following definitions shall apply: “Seller Group” shall mean (i) Seller, its parent, subsidiary or related companies, (ii) its and their working interest owners, co-lessees, co-owners, partners, joint ventures, if any, and their respective parents, subsidiary or related companies and (iii) the officers, directors, employees, consultants, agents and invitees of all of the foregoing.
“Buyer Group” shall mean (i) Buyer, its parent, subsidiary or related companies, (ii) its and their working interest owners, co-lessees, co-owners, partners, joint ventures, if any, and their respective parents, subsidiary or related companies and (iii) the officers, directors, employees, consultants, agents and invitees of all of the foregoing. “Claims” shall mean all claims, demands, causes of action, liabilities, damages, judgments, fines, penalties, awards, losses, costs, expenses (including, without limitation, attorneys’ fees and costs of litigation) of any kind or character arising out of, or related to, the performance of or subject matter of this Order (including, without limitation, property loss or damage, personal or bodily injury, sickness, disease or death, loss of services and/or wages, or loss of consortium or society).
Seller shall release, indemnify, defend and hold Buyer Group harmless from and against any and all Claims in respect of personal or bodily injury to, sickness, disease or death of any member of Seller Group or Seller Group’s subcontractors or their employees, agents or invitees, and all Claims in respect of damage to or loss or destruction of property owned, leased, rented or hired by any member of Seller Group or Seller Group’s subcontractors or their employees, agents or invitees, excepting damage to equipment provided by Seller to Buyer on a rental basis hereunder.
Buyer shall release, indemnify, defend and hold Seller Group harmless from and against any and all Claims in respect of personal or bodily injury to, sickness, disease or death of any member of Buyer Group or Buyer Group’s other contractors or their employees, agents or invitees, and all Claims in respect of damage to or loss or destruction of property owned, leased, rented or hired by any member of Buyer Group or Buyer Group’s other contractors or their employees, agents or invitees.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER AND EACH PARTY RELEASES THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PRODUCTION, LOST REVENUE, LOST PRODUCT, LOST PROFIT, LOST BUSINESS OR BUSINESS OPPORTUNITIES), OR ANY LOST INCOME OF PROFITS (WHETHER DIRECT OR INDIRECT), REGARDLESS OF WHETHER ARISING FROM BREACH OF CONTRACT OR TORT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AT THE DATE OF THIS AGREEMENT OR IF SUCH LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.
Seller’s total liability for all claims, damages, causes of action, demands, judgments, fines, penalties, awards, losses, costs and expenses (including attorney’s fees and cost of litigation) shall be limited to and shall not exceed the value of the Equipment, Parts, Services or Rental purchased under the Order.
12. Additional rental terms :
Seller represent that it has fully inspected the Rental equipment and parts as detailed in writing and that said equipment and parts are in good condition and repair, and are fully acceptable for use as specified in writing. Furthermore, Seller represents that the Rental equipment and parts are not subject to any encumbrances or liens, and that Seller has full title to the equipment and parts. Buyer represent that Buyer shall use the Rental equipment and parts in a careful and proper manner, shall comply with all laws, ordinances and regulations relating to the possession, use and maintenance of the equipment and parts in accordance with Seller’s approved procedures and shall only use the Rental equipment and parts at the location specified in writing. In the event the parties agree that the Buyer shall operate the Rental equipment and parts, Buyer further represents that the Rental equipment and parts will be operated by skilled employees trained in the use of the Rental equipment and parts. Buyer shall keep the Rental equipment and parts free and clear of all liens and encumbrances. At the expiration of the applicable rental term, Buyer will at its sole cost return the Rental equipment to the facility designated by Seller, in working condition (reasonable wear and tear excepted). Upon receipt of the returned Rental equipment, Seller will service and inspect the Rental equipment. In the event Seller determines that the Rental equipment is materially damaged or not in working condition (reasonable wear and tear excepted), any service work required to bring the Rental equipment to good working condition will be charged back to the Buyer.
13. Miscellaneous: If any portion of this Order shall be declared invalid, the Order shall nevertheless continue in force as to those remaining valid provisions. Seller and Buyer declare that they have contributed to the drafting of this Order or have had them reviewed by their counsel before signing any Order purporting to be binding under them. It is expressly agreed that this Order shall not be construed against any party on the basis of who drafted them or who supplied the form of the Order. Each party agrees that this Order have been purposefully drawn and correctly reflects their understanding of the transaction that it contemplates. Additional Conditions Applicable to Export Sales Seller will not provide any certification or other documentation nor agree to any contract provision or otherwise act in any manner which may cause Seller to be in violation of Canadian or United States law, including but not limited to the Export and Import Permits Act, 1985 and regulations issued pursuant thereto. This Order shall be construed in accordance with Canadian law, including but not limited to: any material Anti-dumping legislation. All Orders shall be conditional upon granting of export licenses or import permits which may be required. Should any special taxes, levies or tariffs apply to any product specified by the Buyer shall obtain at its own risk any required export license and import permits and Buyer shall remain liable to accept and pay for material if licenses are not granted or are revoked. Unless otherwise specified on the face hereof, all international sales shall be EXW Seller’s premises (INCOTERMS 2010)