1. GENERAL
The sale of goods and/or provision of services by Texas International Oilfield Tools, Inc. or any of its subsidiaries or affiliates, collectively and individually known as “TIOT”, are subject to the following Standard Terms and Conditions of Sale. The purchaser of the goods and services shall be hereinafter referred to as PURCHASER. Upon the date of TIOT receipt of PURCHASER’s written acceptance of TIOT’s offer, PURCHASER and TIOT shall be deemed on such date to have entered into a legally binding and enforceable agreement for the purchase and sale of the goods and services described therein and, together with these Standard Terms and Conditions of Sale, shall constitute the “Agreement”. As to PURCHASER and TIOT, respectively, “Related Parties” shall mean such party’s parent, subsidiary and affiliated entities, and all of their respective officers, directors, employees, agents, contractors, and designees.
NOTWITHSTANDING THE TERMS AND CONDITIONS CONTAINED IN ANY OTHER AGREEMENT, NO TERMS AND CONDITIONS CONTAINED IN ANY PURCHASE ORDER PLACED WITH TIOT, OTHER THAN THOSE STATED HEREIN, SHALL BE BINDING ON TIOT, UNLESS HEREAFTER MADE IN WRITING, SPECIFICALLY REFERRING TO THE MODIFIED TERMS AND CONDITIONS AND SIGNED BY AN AUTHORIZED OFFICER OF TIOT. IN ALL OTHER EVENTS THESE STANDARD TERMS AND CONDITIONS OF SALE SHALL GOVERN ANY PURCHASE ORDER PLACED WITH TIOT.
THESE STANDARD TERMS AND CONDITIONS OF SALE WILL SUPERSEDE AND GOVERN ALL AGREEMENTS BETWEEN THE PARTIES RELATIVE TO THIS TRANSACTION, AND THERE IS NO AGREEMENT COLLATERAL HERETO (WHETHER ENTERED INTO BEFORE OR AFTER THE PURCHASE ORDER IS PLACED WITH TIOT) OR ANY REPRESENTATION OR WARRANTY WHICH SHALL BE BINDING UPON TIOT UNLESS SIGNED BY AN AUTHORIZED OFFICER OF TIOT.
2. PURCHASER ACKNOWLEDGEMENT
TIOT reserves the right to require an authorized representative of the PURCHASER to provide to TIOT such written evidence as an authorized representative of TIOT may reasonably require acknowledging to PURCHASER’s acceptance of these Standard Terms and Conditions of Sale. Notwithstanding that no such written evidence is provided, these Standard Terms and Conditions of Sale shall constitute part of the Agreement.
3. VALIDITY
TIOT’s quoted prices for goods and services are valid only for the time period stated in TIOT’s written quotation.
4. DELIVERY OF GOODS
TIOT’s goods and services are supplied in accordance with INCOTERMS 2010, and risk of loss shall pass accordingly. Title to the goods shall pass at the same time that risk passes to the BUYER. TIOT has sole discretion to determine the factory location for the provision of the goods and services. Actual delivery time will be subject to availability of manufacturing capacity at the date of the Agreement. Claims for any damage, shortage or loss in transit of goods supplied by TIOT must be made by PURCHASER to the carrier. All goods are shipped ExWorks (EXW) Incoterms 2010 unless otherwise agreed to in writing signed by an authorized representation of ITOT prior to shipping.
5. PAYMENT TERMS
Unless otherwise specified in the Agreement the following shall apply:
Standard Terms and Conditions of Sale for Texas International Oilfield Tools, Inc.
TIOT may require deposits, letters of credit or down payments at time of placement of order as specified in the Agreement. No interest or other amounts will be required to be accrued or paid by TIOT to PURCHASER in connection with such advance payments. All deposits are considered non-refundable unless order is cancelled by PURCHASER within one (1) week of the date of the Agreement
All letters of credit will be irrevocable, confirmed and drawn against a banking facility pre-approved by the TIOT. All letter of credit charges are responsibility of PURCHASER.
PURCHASER agrees to pay all applicable taxes.
Payment in full is required prior to delivery of goods or provision of services by TIOT. Payments are to be made by wire transfer unless otherwise indicated in the Agreement.
In the event credit is applied for and granted to PURCHASER, terms and credit limits shall be established in the Agreement. All amounts beyond set credit limits will be paid in full by PURCHASER prior to delivery. Payments for amounts within set credit limits are due in full from PURCHASER within thirty (30) days from the date goods are shipped or services are provided by TIOT, without setoff or deduction for any reason whatsoever.
6. REMEDY FOR FAILURE TO PAY
If the full payment is not received by TIOT within thirty (30) days after (i) notification of availability of goods for shipment or (ii) invoice for payment is sent by TIOT, TIOT may, in its sole discretion, charge interest at the rate of 18% per annum on unpaid amounts, calculated and compounded monthly, not in advance, until paid in full. The PURCHASER also agrees to pay all reasonable legal expenses and agency commissions sustained by TIOT in pursuit of any payment which is past due, on a full indemnity basis. The remaining balance, plus all accrued interest, must be paid before TIOT will ship any goods or provide any services to PURCHASER. Should PURCHASER fail to deliver the remaining payment balance owed, plus the accrued interest within ninety (90) days after notification, TIOT reserves the right to sell the goods and seek any and all damages.
7. CANCELLATION
Should PURCHASER cancel its order with TIOT within one (1) week following the date of the Agreement, TIOT will refund any deposit or down payment. If PURCHASER cancels its order after one (1) week following the date of the Agreement, PURCHASER agrees that TIOT may retain all, or any portion thereof, of the deposit or down payment based upon the material and labor utilized to the time of cancellation as determined by TIOT in its sole discretion. TIOT shall invoice for any cancellation, and the PURCHASER will pay TIOT’s invoice within thirty (30) days from date of cancellation, plus all reasonable cancellation charges due to the TIOT for an amount not to exceed 100% of the total quoted purchase price based upon material and labor utilized up to the time of cancellation.
8. LIMITATION OF LIABILITY FOR LOSS, ETC.
(a) PURCHASER agrees that TIOT shall only be liable for any loss, damage expense or delay to the goods resulting from the negligence or the other fault of TIOT, such liability shall be limited to an amount equal to the lesser of fifty dollars ($50.00) per entry or shipment or the fee(s) charged for services, provided that, in the case of partial loss, such amount will be adjusted pro rata;
(b) Where TIOT issues its own bill of lading and receives freight charges as its compensation. PURCHASER has the option of paying a special compensation and increasing the limit of TIOT’s liability up to the shipment’s actual value; however, such option must be exercised by written agreement, entered into prior to any covered transaction(s), setting forth the limit of TIOT’s liability and the compensation received;
(c) In instances other than in (b) above, unless PURCHASER makes specific written arrangements with TIOT to pay special compensation and declare a higher value and TIOT agrees in writing, liability is limited to the amount set forth in (a) above;
(d) PURCHASER agrees that TIOT shall, in no event, be liable for consequential, punitive, statutory or special damages in excess of the monetary limit provided for above.
(e) TIOT does not assume, nor authorize any representative or other person to assume for it any obligation or liability other than as expressly set forth herein.
9. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performance under the Agreement (other than for delay in the payment of any amount due and payable including accrued interest prior to the date of the Force Majeure, as hereafter defined) to the extent such failure or delay is caused by reasons of force majeure beyond that party’s reasonable control and not caused by that party’s fault or negligence (“Force Majeure”) including, but not limited to, the occurrence of natural disasters such as earthquakes, hurricanes and floods, the occurrence of war, riot, acts of terrorism or other major upheaval, the imposition of trade sanctions or trade embargoes (including denied and sanctioned parties), the failure of suppliers, subcontractors, and carriers, and/or other necessary parties to substantially meet that party’s performance obligations under the Agreement. As a condition precedent to the non- performing party’s claim of Force Majeure, the non- performing party must give written notice to the other party, within five (5) days after the Force Majeure, and provide complete details in respect of the occurrence of the cause relied upon to excuse performance. The dates by which performance obligations are scheduled to be met will be extended for that period of time which is equal to the time lost due to any delay caused by the Force Majeure. If a Force Majeure event occurs while TIOT is providing service work at a PURCHASER location, then TIOT will be paid at its then applicable technician stand-by rates during any such Force Majeure event. TIOT shall submit its invoice for the payment of such charges which shall be paid within thirty (30) days from the date of such invoice. The failure to pay for such charge shall release TIOT from any further performance obligation under the Agreement. If the Force Majeure event extends for a period of more than forty-five (45) days, TIOT has the right to terminate the Agreement and cancel the order and in that event, TIOT will refund any deposit or down payment after deducting the expenses that have been incurred by TIOT up to the date of receipt of notice by TIOT of the Force Majeure event, as determined by TIOT in its sole discretion.
10. LIMITED WARRANTY
Unless otherwise specified in writing in the Agreement, TIOT warrants its goods to be free from defects in materials and workmanship for a period of 365 days from date of shipment from TIOT’s factory location. Should any part of such goods be found, under normal use and service during the warranty period to be defective, TIOT will repair or replace such goods at its factory location, provided (i) that TIOT receives written notice of the defective product or part within the warranty period, (ii) such defective product or part is returned to that location by the PURCHASER on a prepaid freight basis no later than thirty (30) days after the expiration of the warranty period, (iii) that the TIOT return material authorization number, invoice number and PURCHASER’S purchase order number are noted on the shipping container and (iv) that inspection of the original goods establishes the claim defect to the satisfaction of TIOT in its sole discretion.
TIOT provides no warranty with respect to components manufactured by others which are subject to the warranties of their respective manufacturers that are used in TIOT’s goods or sold by TIOT. Should any such component, provided by TIOT, fail within the manufacturer’s warranty period, such component must be returned to TIOT by the PURCHASER on a prepaid freight basis in accordance with TIOT’s return policy (section 11 below) so it can be returned to the original component manufacturer’s facility for evaluation and disposition.
Any good that is repaired by TIOT is warranted to be free from defects in materials and workmanship for a period of ninety (90) days from the date of completion of repair or the remaining portion of the original warranty, whichever is longer.
No warranty shall apply (i) to goods upon which repairs or alterations have been made (unless authorized by TIOT), (ii) for goods misused, neglected and/or incorrectly installed, stored or operated or (iii) to goods which have not been operated or maintained by demonstrably competent personnel.
On-site warranty service may be provided by TIOT upon request by PURCHASER, and subject to conditions contained in section 10 below, during the original warranty period for TIOT’s goods which cannot be returned by the PURCHASER to TIOT’S designated service location due to logistical or financial reasons acceptable to TIOT. PURCHASER will be responsible for all normal travel and living expenses incurred by TIOT’s technicians during any warranty service call and all costs associated with the transportation, taxes, duties and importation costs of all replacement components. PURCHASER will also be responsible for the transportation, importation and exportation expenses associated with any special tools required for this warranty work. PURCHASER will not be responsible for daily service charges associated with on-site repairs which are determined by TIOT to be a covered warranty defect. Daily service charges for repairs determined by TIOT to be the result of misuse, neglect, modification or incorrect installation or operation will be the responsibility of PURCHASER.
TIOT’s total liability and PURCHASER’s sole remedy under this warranty is limited to such repair or replacement subject to the conditions stated herein, and no allowance will be made for repairs, replacements and/or alterations unless made with TIOT’s prior written approval. THE WARRANTIES CONTAINED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES, AND TIOT HEREBY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. FIELD SERVICE SUPPORT
TIOT may provide qualified technicians to provide field service support for final installation, commissioning, training and required service regardless of whether such work is determined by TIOT to be warranty work. TIOT reserves the right to decline to provide field service support upon request if qualified technicians are unavailable or if logistical issues and/or if geopolitical situations may, in TIOT’s discretion, jeopardize the personal safety of TIOT’s personnel. When technicians are dispatched to provide field service support, PURCHASER agrees to provide a purchase order for the amount of the estimated service costs, paid within thirty (30) days from invoice, in respect of all TIOT’s charges, including the prevailing daily service charges, mileage charges, normal travel and living expenses from the time that TIOT’s technician leaves TIOT’s designated point of origin until the time that the technicians return to the point of origin. All such charges which exceed PURCHASER’s approved available credit limit at the time of any field service call, must be prepaid to TIOT by PURCHASER before mobilization. TIOT shall have no obligation to supply such technician until such charges are paid, unless alternative terms or credit limits determined by TIOT are established. Any parts which are deemed by TIOT’s technicians to be defective in material or workmanship will be provided free of charge to PURCHASER during the warranty term as stated above; however, PURCHASER will be responsible for all transportation and importation costs associated with these components. Reimbursement to PURCHASER by TIOT for any excess prepaid costs, or for costs of parts replaced under warranty, will be made to PURCHASER within thirty (30) days from the date of TIOT’s technician return to TIOT’s designated point of origin or the date of receipt of the defective parts in the TIOT’s designated location, whichever is later.
When TIOT provides field services support for final installation, commissioning and training PURCHASER’S personnel for certain goods (including bucking units), PURCHASER will be responsible for providing utilities, materials and labor to prepare the site for installation and pre-install goods in accordance with TIOT’s written requirements. Failure of PURCHASER to complete these responsibilities prior to the arrival of TIOT’s service personnel will result in additional charges and/or delays in completion of final installation and commissioning. If required, PURCHASER is to provide a technical translator familiar with the English language and in particular, familiar with oilfield industrial or transportation terminology to facilitate this process. Should the stay of TIOT’s service personnel be extended as a result of causes beyond the control of TIOT or TIOT’s personnel, PURCHASER agrees to reimburse TIOT for those documented expenses in excess of the pre-paid estimated or approved available credit limit amount within fourteen (14) days from invoice. TIOT may, in its sole discretion, charge interest at the rate of 18% per annum on unpaid amounts, calculated and compounded monthly, not in advance until paid in full. PURCHASER also agrees to pay all reasonable legal expenses and agency commissions sustained by TIOT in pursuit of any payment which is past due, on a full indemnity basis.
12. RETURNS
TIOT’s return policy is independent from TIOT’s warranty and service policies. TIOT must authorize, in writing, any returns before any return will be considered by TIOT for any refund. Goods returned without prior written authorization by TIOT will not be accepted. TIOT return material authorization number, invoice number and PURCHASER’S purchase order number must be noted on the shipping container and all supporting documentation accompanying any authorized return shipment. Returns will be accepted only on new, unused, and/or standard stock goods returned within thirty (30) days of the date of the Agreement. PURCHASER must return goods on a freight prepaid basis. TIOT may, in its sole discretion, accept for return other items such as custom made goods, special order goods or goods requiring special processing.
If TIOT decides to accept for return such goods, TIOT may charge PURCHASER a restocking fee in order to do so. Electrical or electronic goods will not be accepted for return unless such goods fail to meet specifications or were shipped in error. A credit memo will be issued for those items determined by TIOT to be in compliance with this return policy. A credit memo will be issued for original freight charges only in those cases where the goods were defective, were shipped incorrectly and/or failed to perform as specified.
13. CHANGES
Any requests for changes to the order for goods or services after the date of the Agreement will not be effective unless accepted in writing by both parties. Any request for changes must be initiated by the party seeking the change in the form of a written notice of such request. The request for such change can be for one or more of the following:
(1) the goods (2) the specifications, drawings, designs or other such technical criteria; (3) field service needs; (4) goods quantities; (5) delivery dates; and (6) method or location of delivery. Notwithstanding the foregoing, TIOT expressly reserves its right to change, discontinue and/or modify the design and manufacture of its goods without obligation to furnish, retrofit or install goods previously or subsequently sold.
14. CONFIDENTIAL INFORMATION, TECHNOLOGY AND PROPRIETARY RIGHTS
The parties acknowledge that certain confidential information may be exchanged in the course of executing this Agreement and that all aspects of all discussions and materials exchanged will be treated as confidential and will not be disclosed to any third parties, except as permitted herein. Both parties agree to protect the other parties’ confidential information by not discussing, disclosing, copying and/or distributing this information to any employee who is not actively involved in the project. Furthermore, the terms of employment for employees involved in this project must include an agreement to protect the confidentiality of both parties’ confidential information. Examples of confidential information include, but are not limited to, bids or proposals, methods of manufacturing, engineering or manufacturing drawings, specifications and tolerances, operating procedures and processes, test reports, test methods, control systems, computer programs and instructions and similar information which is not available (or should not be made available) to competitors. Both parties agree to specifically label all confidential information as such. No written information shall be regarded as confidential information if it is not labeled or if it can be shown that such information: 1) is already in the public domain; 2) is already known to the other party; 3) is independently developed by the other party; 4) is disclosed by a third party through no fault of either party; and 5) is required by either party to be disclosed under applicable law or by a court of competent jurisdiction.
Any confidentiality obligation imposed by this agreement may be waived by written agreement of the parties. The parties acknowledge that their respective obligations hereunder will survive termination for a period of five (5) years after the effective date of termination of this Agreement. Within thirty (30) days after the effective date of termination of this Agreement, all written confidential information belonging to the other party will be returned or destroyed.
To the extent necessary to obtain subcontractor bids, to present design proposals to qualified customers, or to obtain governmental or regulatory body assessment/approval, TIOT is permitted to supply select portions of the confidential information to such third parties. Any such disclosure shall be reviewed and approved in writing by PURCHASER. Submissions of confidential information to third parties must be made under a signed confidentiality agreement prohibiting unauthorized disclosure, reproduction in any form, distribution or use of such information. Third parties are required to agree to return all confidential information upon request.
Both parties agree that the other party currently possesses certain core technology and proprietary rights to ideas, goods and processes related to their own area of expertise and business. Technology includes, but is not limited to, confidential and proprietary information developed by either party concerning their own existing or proposed goods and services, trade secrets and technical data. Proprietary rights include, but are not limited to, existing and proposed goods or methods which are covered by issued patents, pending patents or which are under review or development. The Agreement does not transfer the rights to one party’s technology or proprietary rights to the other party or permit use of such rights except as expressly permitted by the Agreement. All documents, drawings, specifications, procedures, processes, methods and systems, which are developed by one party and supplied to the other party will remain the property of the originating party. Both parties agree not to design or build identical or similar goods either in part or in whole for any third party or for their own use using the other party’s technology or proprietary rights.
15. INDEMNIFICATION FOR PATENT INFRINGEMENT
PURCHASER agrees to indemnify TIOT, in respect of all losses, claims, damages, costs and expenses, including legal expenses on a full indemnity basis, arising out of patent infringement claims arising from modifications made by PURCHASER to TIOT’s goods unless such modification has been approved by TIOT in writing.
16. INSURANCE
Both parties agree to maintain adequate insurance to support each party’s obligations under this Agreement. Upon written request by one party, the other party shall furnish to the requesting party certificates of insurance to evidence that adequate insurance is in place and is in full force and effect.
17.COMPLIANCE WITH ANTI-CORRUPTION LAWS
PURCHASER represents and warrants, in connection with the transactions contemplated by this Agreement, and any other agreement contemplated by or entered into pursuant to this Agreement, that it shall take no action, directly or indirectly, that would constitute a violation of the United States Foreign Corrupt Practices Act, Canadian Corruption of Foreign Public Officials Act, United Kingdom Bribery Act or any other applicable anti-bribery or anti-corruption law, convention or regulation (collectively, “anti- corruption laws”). PURCHASER acknowledges and confirms that it and its Related Parties are familiar with the provisions of the anti-corruption laws. PURCHASER hereby agrees to indemnify, defend and hold harmless TIOT and its Related Parties from and against any and all losses, causes of action, liability, claims, demands, damages, judgments, awards, costs or expenses (including our legal fees and expenses on a solicitor-client basis) (collectively “Claims”) arising in connection with any alleged breach by PURCHASER or any of its Related Parties of this section. TIOT reserves the right to terminate the Agreement in its entirety, without liability to PURCHASER, if TIOT has a good faith basis for believing PURCHASER or any of its Related Parties has violated or intends to violate any country’s anti-corruption laws.
18. COMPLIANCE WITH EXPORT RESTRICTIONS
TIOT’s products may be subject to the export control laws of the United States, Canada or other countries where its products are sold. PURCHASER acknowledges that it will comply with all such laws and regulations, and obtain all licenses to export, re-export or import TIOT’s products as may be required. PURCHASER will not, without first obtaining any necessary licenses, export or re-export any of TIOT’s products, proprietary information or related technical data: (i) for any prohibited end uses; (ii) to any prohibited destinations; or (iii) to any individuals or entities that are presently on any denied party lists. Diversion contrary to U.S. law is prohibited.
PURCHASER agrees to assist TIOT in obtaining any necessary export licenses or end-use statements for TIOT’s goods or services required for TIOT to deliver its goods and services to PURCHASER. TIOT shall not be liable to PURCHASER for any failure to provide goods, services or technical data as a result of any of the following governmental actions: (1) refusal to grant export or re- export licenses; or (2) cancellation of export or re-export licenses. TIOT reserves the right to not ship the goods or services and terminate the Agreement in its entirety, without liability to PURCHASER, if TIOT has a good faith basis for believing PURCHASER or any of its Related Parties has violated, or intends to violate, any country’s export regulations. PURCHASER hereby agrees to indemnify, defend and hold harmless TIOT and its Related Parties from and against any and all Claims arising in connection with any breach, or alleged breach, of this section 17 by PURCHASER or any of its Related Parties.
19. INDEMNITY
PURCHASER shall release, indemnify, defend and hold harmless TIOT and its Related Parties from and against all Claims for (i) damage to, or destruction of, property or injury (including death) to any person whatsoever, including without limitation to PURCHASER, its Related Parties, any of its or their customers, contractors or suppliers, arising from or related to the purchase or use or operation of TIOT’s goods or services, REGARDLESS OF THE CAUSE INCLUDING WITHOUT LIMITATION, THE NEGLIGENCE OR STRICT LIABILITY OF, OR BREACH OF CONTRACT, WARRANTY OR DUTY BY TIOT OR ITS RELATED PARTIES; and (ii) for any breach of any of the terms and conditions of this Agreement by PURCHASER. Furthermore, notwithstanding anything contained in the Agreement to the contrary, to the maximum extent permitted under law, PURCHASER shall release, indemnify, defend and hold harmless TIOT and its Related Parties from and against any and all Claims, asserted by, derived from or in favor of any person, party or entity, in respect of or resulting from: (i) loss of or damage to any well or hole (including the cost of re drill);
(ii) blowout, fire, explosion, cratering or any uncontrolled well condition (including the costs to control a wild well and the removal of debris); (iii) damage to any reservoir, geological formation or underground strata or the loss of oil or gas therefrom; and/or (iv) pollution or contamination of any kind (other than surface spillage of fuels, lubricants, rig sewage or garbage, to the extent attributable to the negligence of TIOT) including but not limited to the cost of control, removal and clean-up, REGARDLESS OF THE CAUSE INCLUDING WITHOUT LIMITATION, THE NEGLIGENCE OR STRICT LIABILITY OF, OR BREACH OF CONTRACT, WARRANTY OR DUTY BY TIOT OR ITS RELATED PARTIES.
20. CONSEQUENTIAL DAMAGES WAIVER
Notwithstanding anything contained in this Agreement to the contrary, TIOT shall not, in any event, be liable for any special, incidental, consequential or indirect damages, loss of profits or revenues, or for any claims, damages, costs or expenses (including legal expenses) or delay caused by defective material or workmanship (all of the foregoing collectively “Consequential Damages”) and PURCHASER hereby releases TIOT and its Related Parties from all such Consequential Damages, REGARDLESS OF HOW SUCH CONSEQUENTIAL DAMAGES ARE CAUSED, INCLUDING WITHOUT LIMITATION THE NEGLIGENCE OR STRICT LIABILITY OF, OR BREACH OF CONTRACT, WARRANTY OR DUTY BY TIOT OR ITS RELATED PARTIES.
20. DEFAULTS OR DELAYS
Seller shall not be liable for any default or delay in the delivery of all or any goods resulting either directly or indirectly from (a) accidents to, breakdowns, or mechanical failure of Seller’s plant, machinery, or equipment; strikes or other labor troubles; labor shortages; fire; flood; wars; acts of the public enemy, acts of God; delays of suppliers; delays in transportation or lack of transportation facilities; embargoes; shortages of, or reductions in energy sources; priorities, allocations, limitations, restrictions, or other acts required or requested by Federal, state, or local governments, or any subdivision, bureau or agency thereof; or (b) any cause beyond the control of Seller. In no event shall Seller be liable for any consequential, special, or contingent damages arising out of Seller’s default or delay in filling Buyer’s order.
21. WAIVER
The failure of either party to enforce any provision hereof will not constitute a waiver or preclude subsequent enforcement thereof. Waiver by a party of any breach of these provisions shall not be construed as waiver of any other breach.
22. SEVERABILITY
The fact that a provision contained herein is held invalid, illegal or unenforceable by a court of competent jurisdiction will not affect the other provisions hereof.
23. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Texas. Each party hereby irrevocably submits itself to the jurisdiction of the federal and state courts of Texas located in Houston, Texas, and waives any objection it may now or hereafter have to the placing of venue in any such courts and any right to remove any such action or proceeding to another court.
24. LEGAL EXPENSES
In the event it is necessary for any party to enforce any provision of the Agreement, then in that event, the prevailing party shall be entitled to recover reasonable legal expenses on a full indemnity basis.
25. LIMITATIONS ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
In no event shall Purchaser be liable for anticipated profits or for incidental or consequential damages. Purchaser’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this agreement or from the performance or breach thereof shall in no case exceed the price allocable to the goods or services or unit thereof, which gives rise to the claim. Purchaser shall not be liable for penalties of any description. Any action resulting from any breach on the part of Purchaser as to the goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
26. NOTICES
All notices required or permitted to be given hereunder must be in writing and shall be deemed effectively given when received or, if not received, when deposited with the post office as certified mail, return receipt requested, to the address of the party as contained in the Agreement, or as otherwise provided by either party upon notice to the other party.
27. SCOPE OF GOODS AND SERVICESTOBE PROVIDED
TIOT will provide to PURCHASER the goods and/or perform services as described in and subject to the terms and conditions of this Agreement which may be amended or modified by supplementary change orders agreed to by both parties in such event, the goods and/or services to be provided shall be deemed to include the goods and/or services described in such supplementary change orders.
TIOT will provide such resources and utilize such employees and/or third party consultants as it deems necessary to provide the goods and services. The manner and means used by TIOT to perform the services desired by the PURCHASER are in the sole discretion and control of TIOT. TIOT shall use commercially reasonable efforts to meet the schedules and times of performance for the services as set forth in the Agreement.
PURCHASER agrees to provide TIOT with such information, materials, and technology owned or controlled by PURCHASER as TIOT reasonably requires to provide the goods and services. PURCHASER hereby grants TIOT a royalty-free, non-exclusive, world-wide license to use PURCHASER’s technology, and all PURCHASER intellectual property rights covering such PURCHASER’s technology solely in order for TIOT to provide the goods and services during the term of and in accordance with the Agreement. PURCHASER agrees to obtain for TIOT the right to use, for the purpose of providing the goods and services, such third party information, materials and technology, and any intellectual property rights therein, as TIOT reasonably requires in order to provide the goods and services.
TIOT reserves the right to drawback of duty paid on materials used in the manufacture of the goods sold to PURCHASER. PURCHASER agrees to provide TIOT proof of exportation, as well as any other relevant documents, and to cooperate with TIOT to facilitate the collection of such drawback.
PURCHASER and TIOT agree to cooperate in good faith to permit TIOT to provide the goods and services in a timely and professional manner. PURCHASER understands and agrees that TIOT’s provision of the goods and services may depend on the completion of certain PURCHASER tasks or adherence to PURCHASER schedules within PURCHASER’s control; consequently the schedule for provision of the goods and services or any portion thereof may require adjustments or changes in the event such PURCHASER tasks or schedules change or are modified or are not completed as anticipated. TIOT shall bear no liability or otherwise be responsible for delays in the provision of goods and services or any portion thereof occasioned by PURCHASER’s failure to complete in a timely manner a PURCHASER task or adhere to a PURCHASER schedule.
28. ASSIGNMENT; SOURCE OF PRODUCTION
PURCHASER shall not assign its rights or obligations hereunder without the prior written consent of TIOT, which consent shall not be unreasonably withheld or delayed. Any attempted assignment in contravention of the foregoing shall be void and of no force or effect.
Subject to compliance with PURCHASER’s applicable product quality, specifications and delivery requirements specified in the Agreement, TIOT reserves the right to source production of the goods supplied hereunder from any facilities which are owned by any entity controlling, controlled by or under common control with TIOT. TIOT shall have no responsibility for meeting PURCHASER’s country-of-origin product content requirements (if any) unless TIOT is notified in writing of such requirements at the time PURCHASER places its order with TIOT, or in the case of standing orders, at or before the latest time PURCHASER may place an order in accordance with TIOT’s production scheduling requirements.
29. CONSTRUCTION
No provision of this contract may be construed against TIOT as the drafting party. The term “including” means “including without limitation.” The term “days” means calendar days unless otherwise expressly stated.
30. TERMINATION
In addition to any other remedies available to TIOT at law, TIOT may terminate the Agreement with the PURCHASER in the event that:
(a) PURCHASER fails to perform its obligations under or otherwise breaches any provisions of the Agreement or any other contract between PURCHASER and TIOT or any of TIOT’s affiliates;
(b) PURCHASER ceases to carry on its business substantially as such business is conducted on the date of the Agreement and such change in circumstances modifies TIOT’s obligations or impairs either party’s ability to discharge its obligations under the Agreement;
(c) PURCHASER is the subject of creditor protection of bankruptcy, reorganization, liquidation receivership or similar proceedings;
(d) PURCHASER is unable to pay its debts as they become due;
(e) Any term, condition or provision of the Agreement or any other contract between the PURCHASER and TIOT becomes invalid or illegal under any applicable law, rule or regulation; or
(f) An event of Force Majeure listed in section 8 above continues for a period of more than forty five (45) days.
31. ANTI-CORRUPTION
PURCHASER agrees to comply with the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), U.K. Bribery Act 2010 (“UKBA”), and all other anti- corruption and/or anti-bribery laws applicable in the jurisdiction in which TIOT is selling the Goods. PURCHASER hereby declares that it has read and understood the provisions of the FCPA and, on that basis, it further represents and covenants that neither it nor any of its employees or agents have taken or will take any action to cause TIOT to be in violation of the FCPA. Specifically, PURCHASER hereby certifies that it has not paid, nor offered or agreed to pay, nor has caused to be paid, or offered or agreed to be paid, directly or indirectly, in respect of this Agreement, any political contributions, fees or commissions to any public or governmental employee or official anywhere for the purpose of influencing such official’s act or decision to provide business to PURCHASER or TIOT.
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