VICTORY ENERGY OPERATIONS, LLC TERMS AND CONDITIONS OF SALE
DEFINITIONS
Where the context permits, the following words shall have the meanings indicated: "Buyer" means the individual, partnership, company, joint venture, corporation, or other entity procuring the Products from the Company. "Company" means Victory Energy Operations, LLC, a Delaware limited liability company, with its principal office at 10701 East 126th Street North, Collinsville, Oklahoma 74021, or its subsidiaries and affiliates. "Products" means all goods, materials, services, chattels, equipment, and machinery to be provided pursuant to this Order. "Order" means Buyer's purchase order or contract and documents and data referenced therein.
TERMS AND CONDITIONS
THE COMPANY'S ACCEPTANCE OF ANY OFFER BY BUYER TO PURCHASE THE PRODUCTS IS EXPRESSLY CONDITIONAL UPON THE BUYER'S ASSENT TO ALL THE TERMS AND CONDITIONS HEREIN, INCLUDING ANY TERMS ADDITIONAL TO OR DIFFERENT FROM THOSE CONTAINED IN ANY BUYER'S OFFER TO PURCHASE OR THE ORDER. THESE COMPANY TERMS AND CONDITIONS ARE MADE A PART OF AND GOVERN THE ORDER.
A. PAYMENT
The Order is subject to progress billing in accordance with payment terms as stated therein. Company may invoice for payment upon verifiable completion of the milestones for the amounts specified therein. In the absence of any payment terms in the Order, the payment terms stated within Company's proposal shall apply. The payment terms are Net 30 days from date of invoice unless otherwise indicated in the Order or the Company's proposal if not in the Order. Late payment(s) beyond the terms as stated within the Order or in the absence of the Order as stated herein or in the Company's proposal shall extend the delivery of the Products as determined by the Company.
B. PAST DUE ACCOUNTS
A finance charge of the lesser of 1.5% per month (18% APR) or the highest rate permitted by law will be assessed on all past due accounts. The parties intend to comply with all relevant usury laws. Should the finance charge paid exceed the legal limit, any excess will be deemed a payment of principal. An invoice is past due if the net amount is not paid within 30 days from date of invoice. Interest charged on a past due invoice will be assessed from the date on which that invoice was due. The above charges will be billed on the date that the invoice becomes 30 days past due, and on each monthly period thereafter.
C. BREACH
In the event of failure of Buyer to make any payment to the Company when due, Buyer becoming insolvent, or if a receiver or trustee or assignee for the benefit of creditors is appointed to control any part of Buyer's business, the Company shall be entitled, at its sole option, to (i) extend the shipment of the Products in proportion to the date payment is received by the Company or suspend shipment of any or all goods to such defaulting Buyer, whether or not the contract covering said goods has been accepted by the Company, (ii) cancel any contracts then outstanding for the sale of goods to such defaulting Buyer, (iii) collect all amounts outstanding and, to the extent permitted by law, receive all expenses incurred by Seller in the collection of said payment including reasonable attorneys' fees, and (iv) take all other remedies which are available to Company at law or equity.
D. PRICES
Prices quoted by the company are firm for 30 days from the date of the quotation and are subject to adjustment as stated in the Company's quotation. After 30 days from the date of the quotation, all quoted prices are subject to change by the Company without prior notice to Buyer.
E. CANCELLATION
This Order may be canceled by Buyer only upon (1) written notice to the Company subsequently accepted in writing by the Company and (2) payment to the Company of cancellation charges as determined by the Company to include overhead and profit. In addition to any legal standards excusing performance due to impracticability, Company's duty to perform is expressly conditioned upon Company's ability to obtain the necessary materials to fulfill its obligations under the Order. We reserve the right to refuse or cancel any order at any time for reasons including, but not limited to: product availability, errors in product descriptions or pricing, or suspected fraud or unauthorized transactions. If we cancel your order after payment has been processed, we will issue a full refund to your original payment method immediately.
F. TAXES AND DELIVERY CHARGES
Unless specifically stated within the Order, taxes, duties, and delivery charges are not included within the Order price. Wherever applicable, any such taxes and charges will be added to the invoice as a separate charge to be paid by Buyer.
G. FREIGHT
Unless otherwise stated within Buyer's Order, Company shall deliver the Products Ex-Works (EXW) Company's manufacturing facility with loading allowed onto Buyer's trailers, and risk of loss shall transfer to Buyer at such time. Should Company be responsible for freight DDP jobsite, the following provisions shall apply: Truck Shipments - All truck shipments are subject to route survey and permit approval and changes in routing required by government authorities. All of the foregoing may require price and schedule adjustments. Offloading of the boiler components is the responsibility of the Buyer, and four (4) hours of free time for offloading of boiler components has been provided. Additional time is subject to demurrage. Rail Shipments - Rail shipments will be delivered to the nearest rail siding that the carrier can and will deliver and are subject to route survey and permit approval and changes in routing required by government authorities. All of the foregoing may require price and schedule adjustments. Buyer is responsible for offloading of the boiler components after delivery. Upon delivery Buyer will be granted two (2) free days to allow for offloading of the boiler components. Additional time is subject to demurrage at the prevailing rates. Heavy duty rail car shipments are subject to demurrage and detention costs.
H. SHIPPING DATES
The Products will be shipped in accordance with the shipping date(s) as stated within the Order. In the absence of such information the Products will be shipped in accordance with the dates specified within the Company's proposal. If delivery of the Products is delayed by Buyer, payment shall be made to Company upon completion of the Products or readiness to ship.
I. TRANSPORTATION RISK
Buyer assumes all risks of loss or damage upon the Company's delivery of the Products in accordance with Article G.
J. DELAYS IN DELIVERY
The Company shall not be liable for any delay or failure in the delivery or shipment of the Products, or for any damages suffered by reason thereof, in the event that such delay or failure is, or such damages are, directly or indirectly due to either accident in manufacture or otherwise, epidemic, pandemic, fire, flood, riot, war, embargo, labor stoppages, inadequate transportation facilities, shortage of materials or supplies, delay or default on the part of its vendors or carriers, regulation by any governmental authority, or any cause or causes beyond its control.
K. BACKORDERED SHIPMENT
Back-ordered items are defined as components whose lead-times at time of release to purchase materials for the Products by Buyer may delay the shipment of the Products. Shipment of Products shall not be delayed for backordered components. Upon substantial completion of Products, Buyer shall accept receipt of equipment less the backordered item(s). Backordered item(s) shall be shipped once available, and cost of freight shall be in accordance with the original terms of sale. Alternative components, if available, may be purchased at Buyers expense, and shall require Buyer’s written approval prior to Seller executing any scope changes.
L. STORAGE
If shipment is delayed due to any cause within Buyer's control, the Products may be placed in storage by the Company for Buyer's account and risk, and regular charges therefore and expenses in connection therewith shall be paid by Buyer. If, in the sole opinion of the Company, it is unable to obtain or continue such storage, Buyer will, on request, provide or arrange for suitable storage facilities and assume all cost and risk in connection therewith.
M. CLAIMS
The Company shall not be liable to Buyer for loss or damages to Products after delivery. Shortages or damages to Products must be directed to the attention of the carrier at the time of delivery and stated in writing at that time on the delivery documentation to initiate a claim.
N. WARRANTIES
The Company warrants the Products to be free from defects in workmanship and material, under normal use and service (the "Warranty"), for a period equal to 12 months from the date of notice of readiness to ship is delivered to the Buyer (the "Warranty Period"). All services shall be performed by Company in a workmanlike manner, consistent with U.S. industry practices. Other than the Warranty during the Warranty Period, no other warranty of any kind, expressed or implied, is extended by the Company, and the Company disclaims all other expressed or implied warranties whether arising in law, in equity, in contract, or in tort, including and without limitation, any implied warranty of merchantability, design, condition, or fitness for a particular use. Buyer acknowledges that it alone has determined the intended purpose and suitability of the Products. The Warranty does not cover the effects of normal wear, tear or deterioration of the Products; damages caused by improper treatment of feedwater and or/conditioning of boiler water, or the effects of abrasion, erosion, or corrosion; the effects of improper storage or erection; or abuse of the Products or operation or maintenance not in accordance with Company's operating instructions or standard industry practice. If at any time prior to expiration of the Warranty Period, Buyer or Owner shall discover any defect or other failure of the Products to conform to the Warranty, Company, upon written notice from Buyer, given within a reasonable time after discovery, shall correct the defect or nonconformity or replace the defective Product to comply with the Order requirements. Notwithstanding the foregoing, the Company's obligation to correct or replace any defect or nonconformity shall only occur during the Warranty Period and no such corrections or replacements of any type whatsoever shall occur upon expiration of the Warranty Period. Any defects or nonconformities not corrected or replaced during the Warranty Period shall be deemed accepted by Buyer. Buyer shall be responsible, at its sole cost, for providing the Company adequate access to the Products to make any repair under the Warranty. The Company shall not be responsible for any repairs, parts, equipment supplied by others unless the same was specifically ordered by the Company. Any substitution of parts not provided by the Company or not authorized by the Company or modification, tampering, or manipulation of Company's product shall void the Warranty. Alteration of any parts without express written permission of the Company or use for a purpose other than that intended shall void any and all Warranties. The Warranty shall not be effective unless the Buyer has fully paid for the Products.
O. THERMAL PERFORMANCE
Performance tests shall be run, by others, within sixty (60) days of the date of initial operation of the Products not to exceed three (3) months from delivery of the Products or shall be deemed satisfied. Satisfactory completion of performance tests completely satisfies Company's obligation with respect to Product operation, and Company's sole obligation is strictly restricted to the Warranty. Tests shall be conducted in accordance with the applicable ASME test code including measurement uncertainties for the equipment. Company is not responsible for the performance of equipment and any performance guarantees are voided when startup and adjustment is performed by persons who are not authorized service representatives of Company.
P. BACKCHARGES
In the event the Products furnished by the Company under this Order are found to be defective as to workmanship or materials in accordance with Paragraph M. Warranties, or not to be in conformance with the Order documents, Buyer will take reasonable measures to discover such noncompliance as quickly as practical and provide written notice to Company. Company shall be allowed to correct the defect or nonconformity in accordance with the provisions of Paragraph M, Warranties but only to the extent such corrections are made during the Warranty Period. The accepted procedure for dealing with the resolution of field problems under Paragraph M. Warranties is as follows: 1) Buyer will provide written notice to Company of specific problem(s) and deficiencies before any corrective action is taken. 2) Company will initiate reasonable action to remedy the nonconformity. 3) In a timely manner, which is mutually agreeable to Buyer and Company, Company will either undertake the corrective work or Company will authorize Buyer in writing to proceed with the rework at an agreed upon cost. Final acceptance by Company of Buyer's invoices, pursuant to paragraph 3) above, for corrective work performed by Buyer will be contingent upon proper documentation such as accurate time records, material invoices, etc.
Q. CHANGES
This Order shall not be changed or otherwise modified except upon the prior written authorization of a duly authorized representative of Buyer and the Company.
R. ASSIGNMENT
Any assignment by Buyer of the rights and obligations accruing under the Order shall be null and void without the prior written consent of the Company.
S. WAIVER
The Company's waiver of any breach by Buyer of any of the provisions of the Order shall not constitute a waiver of any other breach of the same or any other provision. The Company's rights and remedies under any provision of the Order shall be in addition to and not in substitution of any other rights and remedies available to the Company under applicable law.
T. GOVERNING LAW AND ARBITRATION
This Order is to be interpreted in accordance with, and its administration and performance governed by, the laws of the State of Oklahoma without regards to its conflict of laws or provisions. The parties hereto agree that the state and federal courts located in Tulsa County, Oklahoma, shall be the exclusive forum for any cause of action filed in any court of law or equity arising out of the execution of or performance under this Order. The Buyer consents and submits to the exclusive jurisdiction of the state or federal courts located in Tulsa County, Oklahoma to enforce this Order, and waives any objection to any such action based upon lack of personal jurisdiction or improper venue. No legal action, suit or proceeding arising from or relating to this Order may be brought in any other forum. The parties hereby irrevocably waive all claims of immunity from jurisdiction and any objection which such party may now or hereafter have to the laying of venue of any suit, action or proceeding in the state or federal courts located in Tulsa County, Oklahoma, including any right to object on the basis that any dispute, action or proceeding brought in the state or federal courts located in Tulsa County, Oklahoma has been brought in an improper or inconvenient forum or venue. Notwithstanding the foregoing, in the event Buyer is located outside the United States of America without any offices or places of business located in the United States of America, including those of its parent, subsidiary or affiliated companies, and purchases Products pursuant to the terms hereof for use outside the United States of America, any dispute between such Buyer and the Company respecting the Products shall be finally and exclusively resolved by arbitration in the English language in Tulsa, Oklahoma, Tulsa County, U.S.A. in accordance with the rules then obtaining of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction thereof.
U. SEVERABILITY
In the event that any provision contained herein is held to be invalid or unlawful, such provisions shall be severable from the remaining provisions of these terms and conditions shall remain in full force and effect.
V. CONFIDENTIAL AND PROPRIETARY INFORMATION; INTELLECTUAL PROPERTY
Buyer shall keep confidential any technical, process or other information derived from drawings, specifications and other data or documents furnished by the Company in connection with this Order and shall not divulge, directly or indirectly, such information for the benefit of Buyer or any other party without obtaining Company's prior written consent and shall maintain as secret such information except as otherwise provided herein. Unless expressly granted in writing by the Company, Buyer shall have no interest or right to use the intellectual property of the Company.
W. LIMITATION OF LIABILITY
Company shall not be liable for any special, indirect, incidental, punitive or consequential damages or lost profit, whether arising under warranty, contract, negligence, strict liability, indemnification, or any other cause or combination of causes whatsoever. Company's liability for personal injury will be limited to $1,000,000 and the limits for property damage will be $1,000,000, with an overall aggregate of $2,000,000. All other liabilities will be limited to the Order value. These limitations shall prevail over any conflicting or inconsistent provisions stated elsewhere.
X. INDEMNIFICATION
Buyer shall at all times indemnify, defend Company and their respective affiliates, employees, officers, directors, and agents harmless from and against any and all costs, liabilities, losses and expenses resulting from and against all claims for personal injury, property damage, wrongful death, patent infringement or other damages, losses, and expenses, including attorney's fees arising out of, or resulting from, performance of the work or any services on behalf of the Buyer, whether or not commenced pursuant to this Order. It is expressly understood and agreed that this obligation to completely indemnify, defend and hold harmless shall apply and be enforceable for all claims without regard to whether or not Buyer is claimed to be negligent or otherwise liable for any such damages, losses and expenses.
Y. INDEPENDENT CONTRACTORS
Neither the Order nor any other agreement made pursuant to or otherwise in connection with the Order shall be deemed to create or constitute a relationship of principle and agent, partnership, joint venture or business organization of any kind or nature whatsoever between Buyer and Company. The sole function of the Company’s service personnel shall be to provide the technical advice and assistance expressly stated in an accepted purchase order between Buyer and Company. Company shall have free access to the work site and the equipment. At all times when Company's service personnel are present or performing services at the Buyer’s work site, the Buyer shall provide an authorized representative to whom the Company’s service personnel shall report and who shall be responsible for the safety of all persons and protection of all property in and adjacent to the work site. In providing the services hereunder, the Company assumes no right or duty to control or shut down the project or equipment or to control or direct the safety, operational, or maintenance procedures or methods utilized at the work site. Company assumes no responsibility for workmanship, productivity, technical qualification or training and qualification requirements of the personnel of the Buyer or others. Buyer shall provide emergency medical aid to Company's service personnel. Company shall reimburse Buyer for the cost of such aid.
Z. SECURITY INTEREST IN THE PRODUCTS
In order to secure Buyer's obligations in connection with the Order, Buyer hereby grants Company a continuing lien on and first priority purchase money security interest in all of Buyer's right, title, and interest in and to the Products purchased under this Order (the "Collateral") and any proceeds thereof. Company's security interest in the Collateral shall terminate upon full payment of the purchase price including any subsequent change orders and related charges. If Buyer fails to pay amounts owed under the Order or otherwise breaches its obligations to Company hereunder, Company shall be entitled to foreclose on the Collateral and shall have all remedies available to secured parties under the Uniform Commercial Code in Oklahoma and the State in which the Collateral is located. Buyer authorizes Company to file in the appropriate records a financing statement and any continuation statement, as Company deems appropriate to perfect Company's security interest in the Collateral, and to notify Buyer's creditors of Company's security interest.
AA. GOVERNMENTAL REGULATIONS
Buyer shall not: (1) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the U.S. Office of Foreign Asset Control list) that prohibits or limits Company from providing Products to Buyer or from otherwise conducting business with Buyer, or (2) fail to provide documentary and other evidence of Buyer's identity as may be requested by Company at any time to enable Company to verify Buyer's identity or to comply with any applicable law or regulation, including without limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318. The Buyer is solely responsible and obligated to comply with all export laws, controls, and regulations of the United States. Buyer certifies and understands that Products procured from the Company shall not be exported, directly or indirectly, without regulatory approval and applicable export licenses of the United States.
AB. NOTICES
All written notices shall be deemed to have been provided and received when transmitted by means of electronic mail, telex and facsimile transmissions, or when deposited and postage prepaid in the United States mail addressed to Buyer’s designated address and recipient as shown on Buyer’s Order.
AC. RETURN MATERIAL AUTORIZATION (RMA)
Buyer shall not make any returns of Products to Company without prior authorization. Company will issue a written RMA number to Buyer. Buyer’s returned Products shall be properly packaged and preserved to prevent damage, then marked with the RMA number to enable traceability. Company, at its sole discretion, will analyze Products when received to determine proper and ultimate disposition.
AD. INTELLECTUAL PROPERTY
Buyer shall hold and protect Company’s information, offers and proposals, contracts, designs, drawings, documentation, logos, trademarks, pictures, copyright, and all communications as Company proprietary and Confidential. Buyer shall not make available, forward, or transmit Company’s intellectual property without Company’s prior written consent.
AE. Coronavirus (COVID-19)
Buyer and Company, collectively “Parties” acknowledge the worldwide outbreak of the coronavirus disease (COVID-19), which may affect the execution of the Order. The Parties agree that the Company shall be entitled to reasonable adjustments of the time schedule/ milestones/ delivery dates to the extent (i)such delay is caused as a direct result of COVID-19 and (ii) such effects are unforeseeable and unavoidable for a conscientious professional supplier using good industry practice.