QUOTE TERMS AND CONDITIONS
Should you place an order, be assured it will receive our prompt attention. Pricing on Quotes is valid for 30 days. Thereafter, it is subject to change without notice. The lead-time on Quotes is valid for 14 days. Thereafter, it is subject to change without notice.
- OFFER – This Purchase Order and its attachments, if any, constitute Buyer’s offer to purchase from Seller the material, goods, services and/or other items described herein. Buyer’s offer is conditioned upon Seller’s acceptance of each of the following terms and conditions. Any modifications of any term and contention by Seller shall constitute a counter offer and shall not be binding on Buyer until specifically accepted by Buyer in writing.
- ACCEPTANCE – Seller should accept this offer to purchase by giving Buyer a prompt written acknowledgment of Seller’s acceptance. In the event Seller fails to provide Buyer with a written acknowledgement of acceptance or notice of rejection within fifteen (15) days from receipt of Buyer’s offer, and unless Seller requests modification of a material term or condition expressed herein within that same fifteen (15) day period, Buyer and Seller herby agree that these Quote Terms and Conditions shall apply in their entirety as written. In any case, acceptance by Seller shall occur at the time Buyer receives Seller’s written acknowledgement of acceptance or when Seller ships the items ordered by Buyer, whichever occurs first. Any additional or different terms proposed by Buyer in any document, including but not limited to terms shown on Buyer’s sales order or any other Buyer’s document, are objected to, null and void, and rejected and will not be binding upon Seller unless agreed to in writing by Seller. These terms and conditions supersede all prior terms and conditions and shall be the sole terms and conditions which apply to any sale, lease, or other furnishing of goods or services by Seller.
- MODIFICATIONS – Prior to Seller’s acceptance of Buyer’s offer to purchase, Buyer may add, delete, or modify any item in the Quote, but must do so in writing. Subsequent to acceptance by the Seller, Buyer may modify the items in the Quote or the specifications upon reasonable notice to Seller; provided, however, if such modification causes an item to be more costly for Seller to supply, Seller my increase the purchase price of that item to Buyer. Modifications shall become part of the Quote whenever confirmed in writing by Buyer and Seller.
- PRICE – The prices included on the front of this Quote are firm and fixed unless otherwise agreed in writing by Seller. For each item purchased hereunder, Buyer shall pay Seller the last price quoted within thirty (30) days of receipt of Seller’s invoice, unless otherwise agreed in writing. Buyer shall pay interest at the rate of one and one-half percent (1.5%) per month (18% per annum), or, if lower, the highest rate permitted by law on past due accounts. Seller shall have the right to suspend the fulfillment of any current, incomplete or future orders until Buyer has paid all past due amounts. If unpaid amounts are collected through legal proceedings or through an attorney, Buyer shall pay reasonable costs and attorneys’ fees associated with such collection procedures or efforts.
- EXPEDITING AND INSPECTION – Seller shall provide to Buyer any information pertinent to this Quote not including proprietary information or cost information and shall allow buyer and its agents to have access to any production facility in order that Buyer may witness the progress of the work and inspect the materials being used. Buyer shall have the right to inspect each item when completed whether paid or not by Buyer. Neither Buyer’s inspection nor failure to inspect shall relieve Seller of its obligations hereunder. Items may be rejected by Buyer if they fail to meet the agreed specifications, and such items shall be returned to Seller at Seller’s cost.
- GENERAL WARRANTY –, For a period of one (1) year from the date of shipment from Seller’s facility or six (6) months after commencement of systems operations, whichever occurs first, Seller expressly represents and warrants to Buyer that all items covered by this Quote Shall (a) conform to the specifications and other requirements by Buyer, (b) be new and of merchandise quantity, (c) be of good material and workmanship, (d) be free of any material defects. Seller’s sole and exclusive liability for breach of this warranty is expressly limited to, at Seller’s sole option, the repair or replacement, Ex Works Seller’s facility or on Buyer’s location, of the good which proves to be defective during the warranty period, or a refund of the consideration paid for the defective good. Buyer shall pay for repairs due to damage to equipment caused by Buyer and all land based only freight charges and mileage. Goods furnished by Seller but not manufactured by Seller will carry only the warranty of the manufacturer of the product, if any. Seller does not warrant any product not manufactured by Seller, but will transfer and assign to Buyer any and all warranties and the benefits thereof from any manufacturer or supplier under the same terms and conditions as provided by such manufacturer or supplier. These warranties and remedies are conditioned upon: (a) the proper storage, installation, operation, and maintenance of the product, in accordance with the manuals and information provided by or available from Seller or its suppliers or vendors; (b) Buyer keeping accurate records of the operation and maintenance of the product during the warranty period and providing such records to Seller on request; (c) modification or repair of any product only as authorized by Seller, (d) Buyer promptly notifying the Seller of any defect in writing within ten (10) business days of Buyer’s discovery of any defects during the warranty period, and (e) Buyer keeping such goods or the results of services in a condition that can be examined by Seller and, upon request by Seller, returning the product to a facility designated by Seller for testing and inspection. Any repair, replacement or performance by Seller shall not extend the warranty period. These warranties shall not apply (i) to excluded warranty items, (ii) if the product or result of service had been subject to misuse, negligence, modification, or use other than as specified by Seller, (iii) if Buyer uses the goods with components which are not manufactured or approved by Seller, (iv) if the product does not perform or requires replacement due to normal wear and tear, (v) if the design or any part of it was provided by Buyer or on Buyer’s behalf to Seller, and (vi) operation or failure of any machinery or equipment or system not supplied by Seller. In the event Buyer requests Seller to perform warranty repair or correction work, but such work is subsequently shown not to be covered by the warranties stipulated above, Buyer shall reimburse Seller its reasonable cost of verifying conformity of the warranty repair or correction and in addition shall pay Seller a fair and reasonable profit on such repair and correction work. This section provides the exclusive remedy for all claims based upon a failure of or defects in goods or services, whether the failure or defect occurs during the warranty period, and whether a claim is based upon contract, warranty, indemnity, tort, extra-contractual liability (including negligence), strict liability, or otherwise. These warranties are exclusive and are in lieu of any other warranties of any kind, written, oral, implied, statutory, or otherwise, including, but not limited to, the implied warranties of merchantability or fitness for a particular purpose or course of performance, course of dealing, or usage of trade.
- MAINTENANCE – After delivery of the goods, all maintenance and repair, other than warranty repairs referenced above, of such goods are the responsibility of Buyer unless otherwise agreed to by Seller in writing.
- LIMITATION OF LIABILITY – The total liability of Seller for any loss or of any kind to Buyer, Buyer’s property, or any other person or person’s property, from Seller’s product or services’ failure to conform to any specification, breach of warranty, negligence or other failure to conform to any standard of care, strict liability, or patent infringement, shall not exceed the amount received by Seller from Buyer for such goods and services. If Seller uses goods of other manufacturers or suppliers in Seller’s goods, and such goods are defective, Seller’s liability shall exist only to the extent that Seller is able to recover from such manufacturer or suppliers for such defects. This limitation of liability shall apply regardless of whether a loss or damage is caused by the sole, joint, or concurrent fault or negligence of Seller or third parties or is based upon contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability, or otherwise. IN NO EVENT SHALL SELLER BE LIABLE FOR, AND BUYER EXPRESSLY RELEASES, INDEMNIFIES, AND HOLDS HARMLESS SELLER FROM AND AGAINST ANY AND ALL LIABILITY FOR PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OR INABILITY TO USE PROPERTY OR EQUIPMENT, LOSS OF WELL, RESERVOIR/UNDERGROUND DAMAGE, LOSS OF OIL, GAS OR OTHER MINERALS, DAMAGES AND EXPENSES DUE TO BLOW OUT, AND DAMAGES OR EXPENSES DUE TO POLLUTION, REGARDLESS OF WHETHER ANY SUCH LOSS OR DAMAGE IS CAUSED BY THE SOLE, JOINT OR CONCURRENT FAULT OR NEGLIGENCE OF SELLER OR THIRD PARTIES OR IS BASED UPON CONTRACT, WARRANTY, INDEMNITY, TORT/EXTRA-CONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
- INDEMNITY – BUYER ACKNOWLEDGES THAT IT IS A SOPHISTICATED USER, BUYER’S USE OF THE GOODS IS SUBJECT TO THE SOLE DISCRETION AND CONTROL OF BUYER, AND BUYER IS IN THE BEST POSITION TO KNOW IF THE PRODUCT IS APPROPRIATE FOR USE UNDER THE CIRCUMSTANCES.
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, BUYER HEREBY ASSUMES (AND SELLER DISCLAIMS) ANY LIABILITY FOR BUYER’S USE OF THE GOODS. BUYER RELEASES SELLER AND AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER AND ITS PARENT, SUBSIDIARY AND AFFILIATED COMPANIES, THEIR AGENTS, SERVANTS, EMPLOYEES, OFFICERS, DIRECTORS AND INSURERS (“SELLER GROUP”), FROM ALL DEMANDS, CLAIMS, PROCEEDINGS AND SUITS OF ANY KIND, INCLUDING BUT NOT LIMITED TO INJURY, DISEASE, OR DEATH TO PERSONS, PROPERTY DAMAGE INCLUDING UNDERGROUND OR SURFACE, (HEREAFER “CLAIMS”), AND ALL DAMAGES, JUDGMENTS, LIABILITIES, FINES, PENALTIES, ASSESSMENTS AND LOSSES OF ANY KIND INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES, EXPERT WITNESS FEES, EXPENSES AND OTHER COSTS OF LITIGATION (HEREAFTER “LOSSES”) ASSERTED AGAINST OR INCURRED BY SELLER GROUP BY REASON OF, ARISING OUT OF, OR IN ANY WAY RELATED TO BUYER’S USE (OR ANY SUBSEQUENT END USER’S USE) OF SELLERS GOODS, SERVICES OR PRODUCTS, REGARDLESS OF WHETHER OR NOT THE CLAIMS OR LOSSES ARE CAUSED BY OR RESULTS FROM THE ACTUAL OR ALLEGED NEGLIGENCE, STRICT LIABILITY, FAULT OR OTHER WRONGFUL CONDUCT OF SELLER AND/OR ANY OTHER PERSON, OR ENTITY, IN WHOLE OR IN PART, WHETHER SOLE, JOINT, ACTIVE OR PASSIVE, AND EVEN IF BUYER IS WITHOUT ANY LEGAL FAULT OF ANY KIND.
IF BUYER IS SUPPLYING SELLER’S GOODS OR SERVICES TO A THIRD PARTY, BUYER SHALL PROVIDE THESE TERMS AND CONDITIONS TO THE THIRD PARTY AND REQUIRE THE THIRD PARTY TO AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF BUYER DOES NOT OBTAIN THIS AGREEMENT, BUYER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER GROUP FROM AND AGAINST ANY AND ALL CLAIMS AND LOSSES (AS DEFINED IN (b) ABOVE), WHICH SELLER GROUP MAY INCUR AS A RESULT OF BUYER’S FAILURE TO TRANSMIT THE TERMS AND CONDITIONS OR OBTAIN SUCH AGREEMENT, REGARDLESS OF WHETHER OR NOT ANY LOSS OR DAMAGES WERE CAUSED IN WHOLE OR IN PART BY THE SOLE, JOINT, OR
- INSURANCE – Each party agrees to maintain comprehensive general liability insurance in the amount of $1,000,000 each occurrence, $2,000,000 general aggregate, and Workers Compensation insurance per statutory requirements providing coverage for the indemnity obligations in this agreement. Such insurance shall be endorsed to provide (i) it is primary to the other party’s insurance and (ii) it waives subrogation against the other party, their parent, subsidiary and affiliated companies, and their agents, servants and employees.
- DELIVERY – Seller shall prepare the items sold hereunder for delivery to the destination specified within the time period specified, or within a reasonable time if no time is specified. Seller shall, without exception, forward to Buyer the express receipt or bill of lading signed by the carrier to evidence shipment, and the receipt or bill of lading shall be attached to the original invoice submitted by Seller. All sales are “Ex Works” which means Seller fulfills its obligation of delivery when it has made the goods available at its premises (i.e. works, factory, warehouse, etc.), and shall constitute full and final delivery as provided in INCOTERMS, unless otherwise agreed in a writing signed by Seller and Buyer. Title and risk of loss shall pass to Buyer upon delivery.
- PACKING –. Each item and package shall be properly labeled as indicated in the Quote.
- HAZARDOUS MATERIAL – Seller is responsible for supplying to buyer and Buyer’s receiving agent “Material Safety Data Sheets” and other required documents on any materials classified as hazardous per Section 48 of the Code of Federal Regulations and any other government regulation. Seller is responsible for complying with all Federal and State laws regarding packaging, marking and shipment of hazardous materials for delivery to the designated receiving location and will hold buyer harmless from and against any damage or loss which Buyer may incur due to such failure.
- INVOICING – Seller shall invoice buyer for all items sold hereunder. Each invoice shall specify Buyer’s Purchase Order number and date, and the specific items invoiced. The invoice shall be delivered to Buyer as agreed to in the Buyer’s purchase order. The time allowed to make that payment shall commence on the date Buyer receives a correct invoice.
- TAXES – Seller’s invoice should detail, separate from the price of individual items, all applicable federal, state and local taxes in effect at the time of sale. If Buyer claims any tax exemptions, Buyer shall provide exemption certificates to Seller and buyer shall be obligated to update such certifications a required. If Buyer does not have a valid exemption certificate on file with Seller, all allowable taxes shall apply.
- CONFIDENTIALITY – Information regarding Seller’s services, equipment, goods, and materials will be held by Buyer in confidence, and may be released to others only upon written approval of Seller or when required by law. This provision shall not apply to information that becomes generally available to the public other than through disclosure by Buyer. Seller retains all rights to all designs, engineering details, and data concerning the goods and services provided and nothing herein shall grant Buyer a license under any invention, patent, trademark or copyright now or hereafter owned by Seller.
- RETURN – Goods may not be returned without prior written agreement of Seller and after passing an inspection by Seller to determine if the Goods are returnable. As a condition to return all returns must be requested within 30 days of delivery and be undamaged, appropriate for re-sale, and in new condition. In the event Seller agrees to a return, Buyer agrees to make Seller whole, and to pay all shipping charges and a minimum restocking charge of 25% of the invoice amount. Higher return fees may apply. Under no circumstances may any goods be returned that are used, damaged, specially ordered or manufactured, or not regularly stocked by Seller.
- FORCE MAJEURE –Seller shall not be liable for any delay, inability to accept delivery or other failure of performance, or any loss or damage, where such delay, failure of performance, loss or damage results from any cause beyond Seller, its suppliers, or contractor’s control, including, but not limited to, the elements, weather, lack of or inability to obtain materials, fuel, transportation or supplies, acts of Buyer, acts of civil or military authorities, acts of terrorism, insurrection, or war, Acts of God, power or utility failures, breakdown of equipment, machinery, tools, or production facilities, differences with workmen, strikes, boycotts, fire, flood, or other casualty, labor shortages, government regulations or requirements, whether similar or dissimilar to those enumerated, and whether or not foreseeable.
- GOVERNING LAW – This Quote shall be governed for all purposes by the laws of the State of Texas, U.S.A. Both parties agree that any action of any type which relates to or arises out of this Quote shall be brought exclusively in the appropriate state court in Harris County, Houston Texas or the United States District Court for the Southern District of Texas.
- COMPLIANCE WITH LAWS – Buyer agrees to comply with all laws, orders and regulations of public authorities, including applicable foreign country if exporting goods are part of this order.
- PATENTS – Seller agrees to indemnify and hold harmless Buyer from and against all claims, suits, and costs of patent infringement related to goods or services provided by Seller, expressly subject to the following conditions: (i) Buyer must promptly notify Seller in writing upon receipt of any claim for infringement or service of any suit for infringement, (ii) Buyer must make no admission of liability and must unconditionally afford Seller the opportunity, at Seller’s sole option and expense, to answer such claim or suit, assume control of the defense, and settle, compromise, or try such matter as Seller sees fit, (iii) Buyer must provide Seller with full disclosure and assistance that may reasonably be required to defend and claim or suit.
This indemnity shall not apply to (i) any product not manufactured by Seller, (ii) any product specially made, in whole or in part, to Buyer’s design specifications, (iii) any product used in combination with other goods or materials in such a manner that the combination (and not the product manufactured by Seller) is the basis for the claim of infringement, (iv) any product for which Seller has offered an update or change, which would prevent the claim or suit, and (v) any product that has been altered, modified, or revised by Buyer.
Paragraph 8 of these terms and conditions excluding any liability for consequential damages is incorporated by reference as if fully set forth here. Seller’s liability under this indemnity shall not exceed the amount received by Seller for such product or services claimed to be infringing.
Seller may, at its option, (i) procure for Buyer the right to continue using the product or service, (ii) modify or replace it in whole or in part to avoid infringement, or (iii) take back the product or discontinue service and refund any fees received by Seller for the infringing product or services.
This indemnity is in lieu of any other warranty or indemnity, express or implied, with respect to infringement and states Seller’s entire liability for indemnification for patent, trademark, copyright, and trade secret infringement for goods and services.
The sale of any products hereunder does not convey any license by implication, estoppel or otherwise covering combinations of the products with other equipment data or programs. Seller retains the copyright in all documents, catalogs and plans supplied to Buyer pursuant to or ancillary to the contract. Unless otherwise agreed in writing, Buyer shall obtain no interest in any tooling used in the production of any Seller product.
- WAIVER – Any delay or failure to enforce any of these terms and conditions shall not bar any subsequent enforcement of the terms and conditions or be deemed a waiver of any subsequent breach The rights and remedies of Seller set forth herein are not exclusive, but are in addition to all other rights and remedies of Seller at law and in equity.
- ASSIGNMENT AND SETOFF – This Quote including amounts payments to be paid hereunder, shall not be assigned or transferred in whole or in part without Seller’s prior written consent. .
- ENTIRE AGREEMENT – This Quote, including expressly incorporated attachments and Buyer’s purchase order, constitutes the entire agreement between the Buyer and Seller regarding the subject matter of this Quote, and supersedes all prior bids, awards, discussions, negotiations and agreements regarding the subject matter. Any amendment to this Quote, including an oral modification supported by new consideration, must be in writing and must be signed by Buyer and Seller before it shall be effective. In the event there is any conflict between any provision typed on the face of this Quote or on any incorporated attachment, and any provision set forth in these Terms and Conditions, the typed provisions on the Quote face or attachment shall prevail.
- EXPORT LAWS – All sales are subject to United States Export Laws and Regulations, which may restrict the export or re-export to certain countries. Buyer agrees to abide by such export and re-export laws and regulations. Buyer hereby certifies that products or services acquired from Forum Energy Technologies, Inc. (FET) and its distributors, foreign affiliates and subsidiaries (FET) will not be directly or indirectly exported, re-exported, sold, rented, leased, transferred, diverted, or otherwise disposed of to any natural or legal person, entity or body in Russia or for use in Russia, in violation of: (a) the U.S. Export Administration Regulations; (b) European Union (EU) Regulations; or (c) any other applicable laws and regulations.