These Standard Terms of Service (“Terms”) are entered into by and between OGI Process Equipment, Inc. (hereinafter “OGI” or “Seller”) and ____________________________________ (hereinafter “Buyer”) on this ____ day of ______________, 20___. OGI/Seller and/or Buyer are hereinafter sometimes referred to individually as a “Party,” or, collectively, as the “Parties.” The Parties intending to be legally bound, hereby agree and stipulate:
1. Other terms and conditions void. Except for Seller’s Standard Terms of Sale (“Sale Terms”), which always supplement these Terms, these Terms supersede all other prior, contemporaneous and/or subsequent terms and conditions and are inferior only to conflicting terms in Seller’s Quotation on the service activities requested. The Parties specifically agree that any other form terms and conditions that may be attached or referred to are rejected and void and of no force and effect, even if not in conflict with these Terms. The Sale Terms and these Terms constitute the sole terms and conditions of the agreement between the Parties.
2. Prices. All prices and payments herein are in U.S. Dollars. Seller’s acceptance of an order from Buyer is, at all times, subject to credit approval by OGI and continued creditworthiness of Buyer. Unless specifically agreed to the contrary, prices of any attendant supplies or parts are EXW (Seller’s facility in Sand Springs, Oklahoma) Incoterms® 2010 and do not include sales, excise, use, value-added or other similar taxes or duties now in effect or hereafter levied. For further terms regarding the sale of goods, refer to the Seller’s Sale Terms.
3. Service Requested. Buyer has requested that Seller provides certain labor, services and attendant materials and goods necessary to perform the service activities (“Service”) as described on Seller’s quotation (“Quotation”). (a) Seller has agreed to endeavor to provide such Services, provided, however, the Parties acknowledge and agree that the successful performance of such requested Services is not and cannot be fully determined unless and until Seller’s representative makes an examination of the equipment or installation for which Service is requested, which may include disassembly, including destructive disassembly. The Parties agree that in the event that Seller cannot complete the Service, that, upon Buyer’s request, Seller’s representative will, to the extent possible, place the equipment or installation into the same condition, if it can be done safely, and Buyer shall pay for the time, labor, transportation and materials incurred. (b) Upon examination, if Seller anticipates that the Service can be completed, Seller’s representative, using reasonable and ordinary workmanlike skill and care, will make best efforts to complete the Service requested. (c) The Parties agree that Seller may determine as the work proceeds that the Service may not be possible or advisable, in which case the provisions of subparagraph (a) of this paragraph shall apply. The Parties agree and acknowledge that the Service requested involves situations and circumstances in the field over which Seller does not have control or authority and, as such, Seller’s efforts to examine, assess and attempt to provide the Service are on a best efforts basis. No waiver or modification of any of these Terms shall be effective unless acknowledged in writing and approved by an authorized officer of OGI. The Parties agree and acknowledge that Seller may not be able to assess or perform the requested Service in one trip to the location where the Service is to be performed. Accordingly, even if not specified, multiple trips, time and travel expenses related thereto are agreed to be implied within Buyer’s request for Service and properly charged to the Buyer. Additionally, Seller’s representative will endeavor to carry necessary materials when traveling to perform Service, but due to the nature of service calls, may not be able to identify and obtain all necessary parts or materials to evaluate or perform the Service. Parties likewise agree and acknowledge such circumstances are beyond Seller’s control and will be performed by Seller on a best efforts basis with any delay, expense, time or travel being the responsibility of and on the account of the Buyer.
4. Payment. Unless otherwise agreed by Seller in writing or otherwise addressed herein, the payment due Seller from Buyer are due in full net thirty (30) days from Seller’s invoice date. Payment requirements are not subject to Paragraph 6. Past due invoices are subject to late charges of 1-1/2% per month. If charges are placed with an attorney for collection, all reasonable costs, including attorney’s fees, whether or not such collection results in litigation, will be charged against and paid by Buyer.
5. Adequate Assurance. Nothing contained herein impairs either Party’s right to request and obtain adequate assurances of performance from the other Party. Provided, however, Seller may, at any time and in its sole discretion, require payment in advance or interim payment or deposit.
6. Force Majeure. Neither Party shall be liable in damages nor have the right to terminate the agreement between the Parties for any delay in performing hereunder if such delay or default is caused by conditions beyond its control, including, but not limited to acts of God, governmental restrictions, limitation or regulation, wars, labor or materials shortages, supplier or material provider delivery delay, breach of contract or refusal to deliver, insurrections and/or any cause beyond the reasonable control of the Party whose performance is affected. Should a situation beyond a Party’s control cause such a delay, the Service schedule shall be adjusted to reflect a date that is expeditious but reasonable upon removal of the circumstances which caused the delay. Any Party seeking to invoke this provision shall advise the other Party in writing and recite the specific circumstances which exist that will delay performance.
7. Expertise. Seller is not an engineering firm. Seller may be generally aware of the intended application of Service but is not aware of and has made no studies to determine specifications, requirements, standards, limitations, tolerances or safety factors for Buyer’s application for the Services requested. It is expressly understood that any technical information furnished by Seller with respect to the Service is given without charge, and Seller assumes no obligation or liability for the information given or results obtained, all such information being given and accepted at Buyer’s risk. It is Buyer’s responsibility to be familiar with state and local laws, codes, permit requirements, ordinances, local conditions, environment and applications for any goods used in the performance of the Service and advise Seller, in writing, of any issues or requirements. In the ordinary course of business Seller may subcontract portions of the Service to be performed to persons or entities with experience in the field for which said Service is assigned.
8. Disclaimer of Warranty on Service and Express Limited Warranties, Disclaimer and Limitation of Remedies. No warranty is given on Service and it is provided on a best efforts basis, only. BUYER AGREES AND ACKNOWLEDGES THAT THERE IS NO WARRANTY, EXPRESS OR IMPLIED AND THAT BUYER HAS NO REMEDY AGAINST SELLER.
8.1 Notwithstanding the Sale Terms that supplement these Terms, Seller guarantees the goods it provides attendant to the Service as follows: As to goods it manufactures, Seller warrants them to be free from defective materials and workmanship for a period of ninety (90) days from date of Service. During the warranty period, Seller will repair or replace, at its sole discretion, any good of Seller’s manufacture which has proven to be defective within the warranty period stated, either in materials or workmanship. Upon identification of a potential defect, Buyer must immediately notify Seller in writing and provide Seller an opportunity through its representatives or designee to inspect the materials or workmanship in question.
8.2 With regard to component goods sold or material provided by the Seller which are not of its manufacture, those components and material are subject to the warranty given by the manufacturer of the component or material. Specifically, Seller does not warrant components or material that it does not manufacture, therefore repair or replacement of those components or material will be in accordance with the terms of the component or material manufacturer’s warranty, if any, and Seller must authorize return of such material prior to its return shipment (because return may need to be made to the manufacturer or according to its terms). Buyer shall bear the expense of packing and shipping proposed defective parts, components and material and the expense of installing replacement goods or material. Any warranty excludes normal wear and tear and is rendered void by improper installation, application, negligence, incorrect wiring, abuse, misuse or operation other than in accordance with the Seller’s and component manufacturer’s operating instructions. Approved warranty claims on component parts or material will be credited to Buyer’s account only upon receipt of corresponding credit from the component manufacturer.
8.3 The warranty contained herein is provided to the original Buyer and is not transferable, unless consented to in writing by Seller. NO WARRANTY OF GOODS OR SERVICE IS MADE OTHER THAN EXPRESSLY STATED HEREIN AND THE PARTIES AGREE THAT, SELLER IS NOT TO BE HELD LIABLE FOR ANY LOSS, DAMAGE, EXPENSE OR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES DIRECTLY OR INDIRECTLY ARISING BECAUSE OF THE GOODS OR SERVICE OR THEIR USE. ALL WARRANTIES, EXPRESS OR IMPLIED, AND REMEDIES ARE LIMITED TO THOSE CONTAINED IN THESE TERMS, ANY OTHER WARRANTIES FOR SERVICE AND/OR GOODS, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. REMEDIES FOR ANY BREACHES OR CLAIMS ARE LIMITED EXCLUSIVELY TO THOSE CONTAINED HEREIN. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THESE TERMS. IF BUYER IS NOT THE END USER OF THE SERVICE, IT SHALL TAKE STEPS TO ADVISE THE END USER OF THE DISCLAIMERS AND LIMITATIONS CONTAINED HEREIN.
9. Water Quality and Other Utility Quality. Buyer warrants and agrees to maintain water quality and any other necessary or advisable utility sources at a level that will not damage equipment being serviced or the tools and implements used by Seller to perform an evaluation or Service. Furthermore, the location and installation of the equipment being serviced, securing local permits and compliance with local laws and codes are the responsibility of Buyer. Buyer warrants that proper electrical, fuel, water, stack tie-in, combustion air, space requirements and any other resource, utility, space shall be provided for evaluation, Service and operation.
10. Indemnity and Subrogation Waiver. Nothing contained herein impairs or infringes upon the Parties’ legal rights to seek indemnification in the proper circumstances from the other. The Parties mutually waive subrogation rights against the other for purposes of claims made concerning the Service for which insurance coverage is applicable. Notwithstanding the foregoing language, Buyer indemnifies and will defend Seller against any and all claims and demands, including attorney’s fees, made by any person or entity for any harm, injury or damage suffered or alleged to be suffered as a result of Buyer’s operation or attempted operation of the equipment upon which the evaluation or Service was performed or attempted to be performed.
11. Claims and Arbitration and Statute of Limitations. Any proceeding for breach of the agreement of the Parties or these Terms or any other right arising from or in connection with any performance of the Parties cannot be filed or maintained, unless (i) it is commenced within one (1) year after the evaluation or performance of the Service, (ii) Buyer has given timely written notice to Seller of its claim as provided herein, and (iii) Buyer deposits any unpaid portion of the purchase price for Services with the tribunal pending final adjudication. An action shall accrue no later than the completion of the evaluation or service or completion of the attempted evaluation or Service, as shown by the records of the Seller. Provided, however, notwithstanding the foregoing, a claim based upon a warranty may be commenced before the appropriate tribunal within one (1) year of discovery of the alleged deficiency during the warranty period. Unless otherwise agreed in writing, any controversy or claim arising out of or relating to the agreement of the Parties, or the terms hereof, including warranty claims, shall be resolved by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in Tulsa, Oklahoma, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Costs (including the fees of the American Arbitration Association and the costs and expenses of the arbitrators) shall be divided equally between the Parties. Attorney’s fees are not awardable to the prevailing Party and each Party shall bear its own attorney’s fees and costs. The decision shall be made by a panel of three (3) arbitrators and shall be a reasoned award.
12. Applicable Law, Jurisdiction and Venue. The law of the State of Oklahoma including the Uniform Commercial Code in force on the initial date of the Terms, without regard to its conflict of law rules and except as provided herein, shall govern any disputes between the Parties. The U.N. Convention on the International Sale of Products shall not apply. State courts in Tulsa County, Oklahoma and federal courts in the Northern District of Oklahoma shall have exclusive jurisdiction over the Parties and the claims arising under the Sale Terms and these Terms, subject to the arbitration provisions contained herein.
13. Mutual Confidentiality and Intellectual Property Obligations. The Parties shall keep confidential and not, either during or after the term of these Terms or any purchase order, except as required in the course of its performance hereunder or with the prior written consent of the other Party, communicate or divulge to, or use for their own benefit or the benefit of any other person, firm, association or corporation, any confidential or proprietary information of the other Party, including but not limited to the contract documents and information concerning (i) technical information in respect to the goods and services of either Party, including any inventions, discoveries, improvements, processes, business methods, product design information, engineering drawings, patents and applications for patents, copyrightable work, software, including object and source code, and related trade secrets; and (ii) business information in respect to the goods and services of either Party, including the names and contact information for the existing and potential customers, market research and studies, future plans, business affairs, pricing, margins, discounts and costs (the “Confidential Information”). The Parties acknowledge and agree that the Confidential Information may include information that it develops as well as information that it learns from the other Party. All records, files, memoranda, reports, price lists, customer lists, drawings, plans, sketches, documents, software, including object and source code equipment, and the like, relating to the business of the other Party, which Party shall use or prepare or come into contact with shall remain the sole property of that other Party and shall be returned to the other Party upon request or termination of these Terms or any purchase order, together with all copies thereof. The Parties agree that any ideas, concepts, developments, discoveries, inventions, improvements, designs or techniques (“Developments”) developed jointly by Buyer and Seller shall be jointly owned and may be exploited independently by either Party.
14. Sales Tax Exemption. If exempt, Buyer is responsible for providing proof of sales tax exemption. It is the intention of the Parties that Buyer pay sales tax, unless exempt. The Parties agree that if not invoiced at the time of sale, Buyer will subsequently pay sales tax when invoiced, net ten (10) days, even though it may not occur until Service is performed.
15. Liability Insurance. Buyer shall maintain a policy of insurance or other appropriate and lawful protection for all workers’ compensation claims as required by law, a policy of public liability insurance with limits of coverage not less than $1,000,000.00 and a policy for products and completed operations of not less than $5,000,000.00, of which Seller shall be an additional insured.
16. Merger. The agreement of the Parties as reflected in the face of the Purchase Order, the Seller’s Quotation and the Terms contained herein, and Sale Terms (except to the extent modified herein) constitute the entire and exclusive agreement of the Parties. These agreements form a binding contract and cannot be cancelled for convenience without the mutual consent of both Buyer and Seller. No oral or written prior or contemporaneous agreements or representations were made or relied upon by the Parties. The agreement of the Parties, may only be modified or amended as provided herein.
OGI PROCESS EQUIPMENT, INC.
Stacey Schmidt, President
(Print Name and Title)