These terms and conditions of sale (“Terms”) and the accompanying sales quote, proposal, confirmation, acknowledgement, or invoice (collectively with the Terms, the “Agreement”) are the only terms which govern the sale of the equipment (“Equipment”) by NineX Power Systems, LLC (“Seller”) to the buyer (“Buyer”). The term “Services” shall mean the labor from time to time provided by Seller. This agreement contains all of the terms applicable to any sale of or offer to sell now or in the future Equipment or Services. Seller specifically objects to any additional or different terms contained in any document used by Buyer. Any acceptance of Equipment or Services by Buyer or any payment by Buyer of any part of the purchase price shall be deemed to be a waiver of any additional or different terms contained in Buyer’s documents and an acceptance of all of these Terms and Conditions, notwithstanding the acknowledgement by seller of Buyer’s purchase order or other document provided by Buyer. No order for Equipment or Services shall be binding on Seller until it is acknowledged in writing by Seller.
Delivery: The Equipment will be delivered when and as provided in the Agreement. Unless otherwise stated in the Quote or Purchase Agreement, or other Incoterms for delivery are agreed to between Buyer and Seller as evidenced by Seller’s invoice, all Equipment shall be delivered and all prices are Ex Works Seller’s facility in Houston, Texas, and notification that Equipment is ready for shipment shall constitute delivery to the Buyer. All freight, insurance, and other shipping expenses shall be borne by Buyer. Seller is not liable for damage or losses incurred by Buyer as a result of freight damage or delays.
Any delivery dates stated herein are approximate, Seller will make every reasonable effort to meet any delivery dates requested by Buyer. Any failure to deliver or delay in delivery due to any preference, priority, allocation, or allotment order issued by the government, whether federal, state or local, Acts of God or a public enemy, acts of government foreign or domestic, fires, floods, epidemics, quarantine restrictions, strikes, lockouts, freight embargoes, unusually severe weather, unavailability of materials or shipping space, delays of carriers or suppliers or delays of any subcontractors, or causes beyond Seller’s reasonable control, shall be excused and shall not constitute a default under this agreement, and Seller shall not be liable for any damages arising out of or related to any such failure or delay.
If buyer has not picked up Equipment from Seller’s facility, Seller will charge Buyer storage fees at a rate of $100.00 a day, beginning seven (7) days after completion of service or thirty (30) days from date of invoice, whichever comes first. Unit will not be released to buyer until all storage fees have been paid to Seller.
Inspection and Rejection of Nonconforming Equipment: Buyer shall inspect the Equipment within forty-eight (48) hours of Buyer’s receipt of the Equipment (“Inspection Period”). Buyer will be deemed to have accepted the Equipment unless it notifies Seller in writing of any Nonconforming Equipment during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Equipment” means only that the product shipped is different than identified in Buyer’s purchase order or is damaged. If Buyer timely notifies Seller of any Nonconforming Equipment, Seller shall, in its sole discretion, (i) have the right to inspect any Nonconforming Equipment; (ii) repair the Nonconforming Equipment at the location of such Nonconforming Equipment; (iii) replace such Nonconforming Equipment with conforming Equipment; or (iv) credit or refund the Price for such Nonconforming Equipment. Buyer shall ship, at its expense and risk of loss, the Nonconforming Equipment to Seller as directed by Seller. If Seller exercises its option to replace Nonconforming Equipment, Seller shall, after receiving Buyer’s shipment of Nonconforming Equipment, deliver the replaced Equipment to Buyer at the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Equipment.
Price: All prices, fees, charges and taxes are expressed in U.S. Dollars. Buyer shall purchase the Equipment from Seller at the price set forth in the Agreement (“Price”). All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets. In the event that any Equipment will be shipped out of the continental limits of the United States of America, all fees and expenses relating to export documentation, export-packing, marking or importation into the country of destination shall be the responsibility of the Buyer.
Sales and Other Taxes: Unless otherwise stated herein or in the Quote or Purchase Agreement, the prices specified herein do not include any federal, state, municipal, or local property, license, privilege, business, occupation, stamp, documentary, sales, use, excise, gross receipts, duties, or custom charges, value added or other similar taxes which may now or hereafter be applicable to, measured by, or imposed by any governmental authority or with respect to (1) the transaction described herein or any contract of sale resulting therefrom, or (2) the Equipment described herein or their sale, value, or use, or (3) the performance of any services described herein. If the transaction is exempt from tax, Buyer shall provide the Seller with a tax exemption certificate or other documentation acceptable to the governing taxing authorities. Otherwise, applicable taxes shall be shown separately on Seller’s invoice, and Buyer agrees to pay to the Seller any such taxes, and within thirty (30) days of Seller’s written notice to Buyer, Buyer shall pay or reimburse to Seller all penalties and interest in connection with such taxes which the Seller or the Seller’s subcontractors or suppliers are required to pay.
Payment Terms: All payments shall be in U.S. Dollars, freight collect without offset, back charge, retention or withholding of any kind. All invoices shall be payable as noted on the invoice or within (30) days, whichever occurs first. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend delivery of any Equipment if Buyer fails to pay any amounts when due and such failure continues for ten (10) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise. Unless otherwise noted on the Agreement or Invoice, any and all deposits, down payments or advance payments are non-refundable, whether or not Seller consents to cancellation of the purchase of any Equipment under this Agreement.
Cancellation: Orders for Equipment or Services may not be cancelled by Buyer after acceptance by Seller. Seller shall be entitled to request reasonable assurances that Buyer will accept and pay for any Equipment or Services, including but not limited to, requiring payments on account or in advance, if there are reasons to believe that Buyer will not accept and pay for Equipment or Services when delivered. Until such assurances are received, Seller shall be entitled to stop work on the Equipment or Services, cancel any agreement to sell the Equipment or Services, sue for and recover the purchase price or any expenses incurred to the date of cancellation, resell the Equipment or Services to a third party, or exercise any other remedy available at law or in equity for breach of contract. Should the Seller agree in writing to accept any returns, there will be a 20% restocking fee.
Warranty: To the extent that Equipment is warranted by their original manufacturers, and to the extent that such warranties are assignable to Buyer, Seller shall assign to Buyer any such manufacturer warranties, subject to all terms and conditions of such warranties, without recourse, and such manufacturer warranties shall be Buyer’s sole and exclusive remedy as to any defective Equipment, unless otherwise stated in the Quote or Purchase Agreement.
Buyer is responsible for performing all regular maintenance and repair on the Equipment purchased from Seller. The foregoing warranties do not apply and shall be void in the event of any damage or defect arising out of or related to: improper installation, misalignment, improper or inadequate repair or maintenance, abuse, misuse or use outside Buyer’s specified parameters, alteration, acts of vandalism or terrorism, accident or Acts of God, normal wear and tear, or such other causes as stated in the manufacturer’s warranty.
EXCEPT WHERE OTHERWISE SPECIFICALLY PROVIDED FOR IN WRITING HEREIN, SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, AND SELLER HERBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER ACKNOWLEDGES THAT SELLER’S MARKETING AND PRODUCT INFORMATION DO NOT CONSTITUTE WARRANTIES OF PERFORMANCE OR QUALITY, BUYER HAS EXAMINED OR REFUSED TO EXAMINE THE EQUIPMENT, AND THAT THERE ARE NO IMPLIED WARRANTIES WITH REGARD TO ANY CONDITION OR DEFECT WHICH A REASONABLE EXAMINATION SHOULD REVEAL. UNDER NO CIRCUMSTANCES SHALL SELLER BE RESPONSIBLE FOR ANY DAMAGES TO OTHER PROPERTY OF BUYER, LOSS OF USE OR DOWNTIME, LOSS OF PROFIT OR GOODWILL, OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO ANY DEFECT IN THE EQUIPMENT, OR UNDER THIS WARRANTY.
WAIVER OF CONSEQUENTIAL DAMAGES: NEITHER SELLER NOR BUYER SHALL HAVE ANY LIABILITY TO THE OTHER FOR, AND SELLER AND BUYER HEREBY EXPRESSLY WAIVE ANY AND ALL CLAIMS FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, AND PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SALE OR PURCHASE OF THE EQUIPMENT, THE EQUIPMENT OR ANY DEFECT IN THE EQUIPMENT, THE FAILURE OF EITHER PARTY TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, OR ANY BREACH OF THIS AGREEMENT, including but not limited to any claim for LOSS OF USE OR DOWNTIME, LOST PRODUCTIVITY, LOST REVENUE OR LOST PROFITS, DAMAGE TO ANY PROPERTY OR EQUIPMENT, OR multiple damages under any deceptive trade practice or consumer protection laws.
Limitation of Liability: IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, SALES, PROFIT, REPUTATION OR GOODWILL, DIMINUTION OR DEPRECIATION IN VALUE, DELAY OR IDLE TIME FOR LABOR AND EQUIPMENT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT BUYER PAID TO SELLER FOR THE EQUIPMENT.
If Equipment is labeled as ‘used’, Buyer understands that the Equipment is used and has been used by persons other than Seller. Buyer acknowledges that the Equipment may contain hazardous chemicals or other hazardous materials which may be or may become, by chemical reaction or otherwise, directly or indirectly hazardous to life, health, or property (by reason of toxicity, flammability, explosiveness or otherwise during use, handling, cleaning, reconditioning, disposal, or at any other time). Buyer fully and finally release and discharges from any and all liability directly or indirectly resulting from the presence of the aforesaid chemicals or materials.
Buyer acknowledges that the Equipment may be dangerous if improperly used, and that it must contact the original manufacturer to obtain up-to-date installation and operation manuals and other information to ensure the safe operation of the Equipment. Seller is not responsible for any loss or injury resulting from defects or alleged defects in the Equipment sold or from any use of the Equipment.
INDEMNIFICATION: (a) Except with respect to claims relating to bodily injury or death of an EMPLOYEE as defined in the paragraph below, BUYER AGREES TO AND SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS (COLLECTIVELY “INDEMNIFY”) SELLER, ITS PARTNERS, MEMBERS, DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES, (COLLECTIVELY THE “INDEMNIFIED PARTIES” OR INDIVIDUALLY AN “INDEMNIFIED PARTY”) FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, DEMANDS, INJURIES, JUDGEMENTS, CAUSES OF ACTION, SUITS, AND LIABILITY OF EVERY KIND, INCLUDING BUT NOT LIMITED TO ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEY’S FEES (COLLECTIVELY “CLAIMS”), FOR BODILY OR PERSONAL INJURIES, INCLUDING DEATH, TO ANY PERSON, OR DAMAGES TO OR DESTRUCTION OF PROPERTY, INCLUDING THE LOSS OF USE THEREOF, ACTUALLY OR ALLEGEDLY OCCASIONED BY, CONTRIBUTED TO OR ARISING OUT OF, IN WHOLE OR IN PART, THE USE, OPERATION, HANDLING OR TRANSPORTATION OF THE EQUIPMENT, WHILE THE EQUIPMENT ARE IN THE POSSESSION, CUSTODY OR CONTROL OF BUYER, INCLUDING BUT NOT LIMITED TO CLAIMS OCCASIONED BY, CONTRIBUTED TO OR ARISING OUT OF, IN WHOLE OR IN PART, THE NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT, VIOLATION OF ANY STATUTE, RULE OR REGULATION OR OTHER ACT OR OMISSION BY BUYER, ITS EMPLOYEES, AGENTS OR ANY CONTRACTOR OF BUYER OF ANY TIER, OR THEIR RESPECTIVE AGENTS OR EMPLOYEES, OR ANY OTHER PARTY FOR WHOSE ACTS BUYER IS LIABLE. BUYER’S OBLIGATION TO INDEMNIFY SHALL APPLY EVEN IF SUCH CLAIMS ARE ACTUALLY OR ALLEGEDLY CAUSED IN WHOLE OR IN PART BY THE STRICT LIABILITY OR THE ACTS, OMISSIONS, OR NEGLIGENCE OF AN INDEMNIFIED PARTY, EVEN IF SUCH NEGLIGENCE OR OTHER ACTS OR OMISSIONS ARE ACTIVE OR PASSIVE, DIRECT OR INDIRECT, SOLE OR CONCURRENT. THIS INDEMNITY AGREEMENT IS INTENDED TO INDEMNIFY THE AFOREMENTIONED INDEMNIFIED PARTIES FROM THE CONSEQUENCES OF THEIR OWN NEGLIGENCE, AS PROVIDED ABOVE. NOTWITHSTANDING THE FOREGOING, IF SUBCHAPTER C OF CHAPTER 151 OF THE TEXAS INSURANCE CODE APPLIES TO THIS AGREEMENT, THIS INDEMNITY PROVISION SHALL NOT APPLY TO THE EXTENT THAT IT REQUIRES BUYER TO INDEMNIFY AN INDEMNIFIED PARTY AGAINST A CLAIM CAUSED BY THE negligence or fault, the breach or violation of a statute, ordinance, governmental regulation, standard, or rule, or the breach of contract of the indemnified party, ITS AGENT OR EMPLOYEE, OR ANY THIRD PARTY UNDER THE CONTROL OR SUPERVISION OF THE INDEMNIFIED PARTY.
(b) INDEMNITY FOR EMPLOYEE CLAIMS: BUYER AGREES TO AND SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS (COLLECTIVELY “INDEMNIFY”) SELLER AND ITS REPRESENTATIVES, PARTNERS, MEMBERS, DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES (COLLECTIVELY THE “INDEMNIFIED PARTIES” OR INDIVIDUALLY AN “INDEMNIFIED PARTY”) FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, DEMANDS, INJURIES, JUDGEMENTS, CAUSES OF ACTION, SUITS, AND LIABILITY OF EVERY KIND, INCLUDING BUT NOT LIMITED TO ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEY’S FEES (COLLECTIVELY “CLAIMS”) , FOR BODILY INJURY OR DEATH OF ANY EMPLOYEE of BUYER, its agentS, or its contractorS of any tier (COLLECTIVELY “EMPLOYEE” FOR THE PURPOSE OF THIS SECTION), ACTUALLY OR ALLEGEDLY OCCASIONED BY, CONTRIBUTED TO OR ARISING OUT OF, IN WHOLE OR IN PART, THE USE, OPERATION, HANDLING OR TRANSPORTATION OF THE EQUIPMENT, WHILE THE EQUIPMENT ARE IN THE POSSESSION, CUSTODY OR CONTROL OF BUYER, INCLUDING BUT NOT LIMITED TO CLAIMS DUE TO NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF WARRANTY, BREACH OF CONTRACT, VIOLATION OF ANY STATUTE, RULE OR REGULATION OR OTHER ACT OR OMISSION BY BUYER, ITS EMPLOYEES, AGENTS OR ANY CONTRACTOR OF BUYER OF ANY TIER, OR THEIR RESPECTIVE AGENTS OR EMPLOYEES, OR ANY OTHER PARTY FOR WHOSE ACTS BUYER IS LIABLE. BUYER’S OBLIGATION TO INDEMNIFY SHALL APPLY EVEN IF SUCH CLAIMS ARE ACTUALLY OR ALLEGEDLY CAUSED IN WHOLE OR IN PART BY THE STRICT LIABILITY OR THE ACTS, OMISSIONS, OR NEGLIGENCE OF AN INDEMNIFIED PARTY, EVEN IF SUCH NEGLIGENCE OR OTHER ACTS OR OMISSIONS ARE ACTIVE OR PASSIVE, DIRECT OR INDIRECT, SOLE OR CONCURRENT. THIS INDEMNITY AGREEMENT IS INTENDED TO INDEMNIFY THE AFOREMENTIONED INDEMNIFIED PARTIES FROM THE CONSEQUENCES OF THEIR OWN NEGLIGENCE, AS PROVIDED ABOVE.
Termination: Following acceptance by Seller, orders are not subject to cancellation or change without Seller’s prior written consent. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) business days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
Entire Agreement/No Waiver/No Assignment/Modification/Interpretation: The Quote or Purchase Agreement and these Terms and Conditions constitute the entire agreement between the parties and supersedes any prior or contemporaneous agreements, written or oral. Any waiver of any rights or remedies under this Agreement must be in writing and signed by the party against whom it is enforced. This Agreement may not be assigned by the Buyer to any person without the prior written consent of the Seller. Any modification of this Agreement must be in writing and signed by both parties. If any provision of this Agreement is found to be invalid or unenforceable for any reason, such provision shall be deemed severed from this Agreement, and this Agreement shall remain in force and effect as if such invalid provision had never been part of this Agreement. The headings and captions contained in this Agreement are for the convenience of the parties only and shall not affect the interpretation of the text.
Confidential Information: All confidential or proprietary information of Seller, including, but not limited to, specifications, samples, designs, plans, drawings, documents, data, business operations, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential”, is and shall be treated as confidential, may only be used in connection with performing this Agreement, and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section.
Force Majeure: Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Intellectual Property: Buyer shall defend, indemnify, and hold harmless Seller from any and all claims, demands, suits, judgments, liabilities, loss, cost and expense, including but not limited to attorney’s fees incurred, in connection with any actual or alleged infringement or violation of any patent, copyright, trademark or other intellectual property right arising out of or related to Seller’s compliance with any plans, drawings, specifications or design criteria furnished by Buyer.
Exculpatory Clause: The parties agree that Seller will not be liable to Buyer for injury to Buyer’s business or property, arising out of, or occasioned by, directly or indirectly, the failure or defectiveness of any item furnished by Seller pursuant to this Agreement, including all cases in which the defect or failure, or the resultant injury results from, the design, manufacture, marketing, distribution, or operation of any item supplied under this Agreement, or from the failure of Seller to provide timely warnings concerning the items supplied under the terms of this Agreement whether that failure or defectiveness is the sold or contributory cause of the resultant injury. It is the expressed intention of the Buyer and the Seller that this section is designed and intended to protect Seller from the consequences of defects in the design, manufacture, marketing, distribution, or operation of any item supplied under the terms of this Agreement, or from the failure of Seller to provide timely warnings concerning the items suppled under the terms of this Agreement.
Dispute Resolution: All terms and conditions of this agreement shall be enforced and construed in accordance with the laws of the State of Texas, excluding any provision that would direct the application of the laws of another jurisdiction. Except for any equitable relief specifically provided for in this Agreement, any controversy or claim arising out of or relating to this Agreement or the breach hereof, shall be settled by binding arbitration in Houston, Texas according to the Commercial Arbitration Rules of the American Arbitration Association (AAA). The parties agree that venue in Houston, Texas is convenient and proper.
Compliance with Export and Import Laws: EXPORTATION FROM THE UNITED STATES OF EQUIPMENT SOLD OR DELIVERED TO BUYER BY SELLER AND/OR THE RE-EXPORTATION OF SUCH EQUIPMENT FROM ANY OTHER COUNTRY MAY BE PROHIBITED OR RESTRICTED UNDER FEDERAL LAWS AND/OR REGULATIONS OF THE UNITED STATES. ACCORDINGLY, NO EXPORTATION OF SUCH EQUIPMENT FROM THE UNITED STATES AND NO RE-EXPORTATION THEREOF FROM ANY OTHER COUNTRY SHALL BE PERMITTED, EXCEPT IN ACCORDANCE WITH THE LAWS AND REGULATIONS OF THE UNITED STATES, AND BUYER SHALL BE RESPONSIBLE FOR COMPLIANCE WITH SUCH LAWS AND REGULATIONS, AND FOR OBTAINING ALL APPLICABLE LICENSES AND/OR PERMITS. This provision constitutes an independent covenant and continuing obligation of Buyer, which shall survive termination of this Agreement.