These standard terms and conditions shall apply to all services performed (“Services”) and all goods, equipment, materials or other tangible items (collectively, “Goods”, and together with the Services, the “Work”) sold by Oso Perforating, LLC (“Seller”) to any requester or purchaser thereof (“Buyer”). Any pre-existing, additional or different terms proposed by Buyer at any time (including without limitation, those contained in any delivery ticket, invoice, work order, confirmation, bid document, proposal or other instrument or communication issued or provided by Buyer) are objected to unless expressly agreed to in writing by an authorized representative of Seller; provided, that, in the event Seller and Buyer have negotiated and executed a Master Service Agreement or similar agreement (“MSA”), such MSA shall prevail and control.
Buyer may from time to time request Work from Seller through the issuance of a work order (“Order”) either orally or in writing. Buyer shall confirm all oral Orders in writing within forty-eight (48) hours of oral issuance. No Order shall be binding on Seller until accepted in writing by an authorized Seller representative, and nothing in these terms requires Seller to accept an Order from Buyer.
Until Seller accepts an applicable Order in writing, pricing for Work is subject to change at any time, without notice; provided, that, if Seller provides a quotation for Work, the pricing provided in the quotation shall remain valid for the lesser of (a) thirty (30) days from quotation receipt or (b) such other duration as provided in the applicable quotation. Unless otherwise provided in the applicable Order, all pricing is exclusive of costs associated with packaging, transportation or cargo insurance, as well as all applicable sales, use, excise or similar duties or fees (collectively, “Taxes”). Unless Buyer provides Seller a valid tax exemption certificate, any applicable Taxes associated with the Work will be added to Seller’s invoice and such Taxes shall be paid by Buyer.
4.1: All invoices submitted to Buyer are payable within thirty (30) days of receipt. In the event Buyer disputes any amount in good faith, it shall notify Seller of such dispute within twenty (20) days of receipt and shall pay any undisputed amount within the foregoing thirty (30) day period. Any undisputed amounts that remain outstanding after such thirty (30) day period shall accrue interest at the rate of two percent (2%) per month or at the maximum rate permitted by applicable law, whichever is lower. Buyer shall be responsible for all collection fees incurred by Seller in connection with Buyer’s delinquent account, including without limitation, attorneys’ fees and court costs.
4.2: Seller retains a purchase-money security interest in all Goods sold until such time as the Goods are paid for in full, at which point such security interest shall automatically be released. If, prior to full payment for the Goods, Buyer breaches these terms, or Seller reasonably believes Buyer has become insolvent, bankrupt or its financial responsibility has become materially impaired, Seller may, at its option and without legal proceedings, enter any premises where such Goods are located and take possession thereof without being liable to any Claim by Buyer. Seller’s retaking possession of Goods shall be without prejudice to any other right or remedy of Seller herein or at law, and notwithstanding anything contained in Section 8.2 to the contrary, Buyer hereby agrees to reimburse Seller for any costs and damages incurred by Seller in the repossession of such Goods.
4.3: Buyer agrees that if it receives any communication requesting a change to payment remittance instructions, Buyer will not make such change unless Buyer has verified the change by telephone with Buyer’s customary Seller representative. Failure by Buyer to comply with the foregoing obligation shall in no way relieve Buyer of any of its payment obligations to Seller hereunder.
5. Shipping; Delivery; Title
5.1: Unless otherwise stated in the applicable Order, all shipments shall be made Ex Works (Incoterms 2020) Seller’s designated facility. Seller reserves the right to deliver Goods in installments. Any Claims arising from shortages of Goods delivered shall be deemed waived by Buyer unless Buyer notifies Seller of such shortage in writing within five (5) days of Buyer’s receipt of shipment.
5.2: All stated delivery dates and performance dates represent Seller’s reasonable estimates, and in no event shall Seller be liable to Buyer for any damages or costs associated with any delay in delivery or performance. Should Buyer request Seller postpone a scheduled delivery and Seller accepts such postponement request, Buyer shall reimburse Seller for all reasonable expenses incurred by Seller in connection with such postponement, including without limitation, expenses associated with storage, security and increased shipping charges.
5.3: Buyer assumes title and accepts risk of loss of (a) Goods purchased upon notification by Seller that such Goods have been presented for delivery and (b) Services ordered upon the completion thereof.
6. Cancellation; Returns
6.1: No Order may be cancelled after acceptance by Seller. Should Buyer request cancellation, Seller may in its sole discretion accept such request and charge Buyer a ten percent (10%) cancellation fee.
6.2: No Goods may be returned after delivery to Buyer. Should Buyer request to return a Good, Seller may in its sole discretion accept such request and charge Buyer a twenty-five percent (25%) restocking fee. Buyer shall be responsible for all shipping expenses associated with returning the Goods and Seller reserves the right to assess an increased restocking fee for any Goods that are returned opened, damaged or in an otherwise unacceptable condition.
7.1: Seller warrants that, for the ninety (90) day period following delivery, all Goods sold shall: (a) be delivered with good and merchantable title (subject to Section 4.2); (b) be free from defects in materials and workmanship; and (c) conform to the written specifications contained in the Order.
7.2: Seller warrants that, throughout performance and for the thirty (30) day period following completion, all Services shall: (a) be performed in accordance with generally accepted oilfield industry practices prevailing at the time and place where such Services are being rendered; and (b) conform to the written specifications contained in the Order.
7.3: Notwithstanding anything set forth in Sections 7.1 and 7.2 to the contrary, no warranty shall apply to Work (or parts therein or portions thereof) that: (a) have been modified, repaired or otherwise altered without Seller’s prior authorization; (b) are not manufactured by Seller (“Third Party Goods”), with Seller’s sole obligation with respect to such Third Party Goods being the assignment of any applicable manufacturers warranty, or the provision of reasonable assistance (at Buyer’s expense) in enforcing any manufacturers warranties which are not assignable; (c) require repair, replacement or reperformance as a result of ordinary wear and tear; (d) suffer damage as a result of contact with abrasive, corrosive, high-pressure or high-heat materials or environments; (e) experience failures arising from Buyer-provided specifications, drawings or instructions; or (f) otherwise suffer damage or an adverse effect as a result of abuse, misuse (e.g., improper storage, installation or maintenance), neglect or other act or omission of Buyer Group or a third party subsequent to Seller’s delivery or performance thereof.
7.4: If Buyer discovers any Services or Goods that fail to conform to the warranties provided herein and notifies Seller of such nonconformity in writing during the warranty period provided in Sections 7.1 and 7.2, as applicable, Seller shall, at Seller’s sole option, either: (a) correct, repair or replace the nonconforming Services or Goods; or (b) refund the purchase price of the nonconforming portion of the Services or Goods. Notwithstanding any specification or description in its literature or brochures, Seller may substitute other materials of similar quality and cost without notice to Buyer.
7.5: EXCEPT FOR THOSE WARRANTIES EXPRESSLY PROVIDED IN THIS SECTION 7.0, SELLER MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WITH RESPECT TO THE WORK, ANY ORAL OR WRITTEN RECOMMENDATIONS PROVIDED IN CONNECTION THEREWITH OR THE RESULTS ACHIEVED THEREBY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LEGALITY OR NON-INFRINGEMENT. SELLER’S SOLE LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR NONCONFORMING WORK SHALL BE AS SET FORTH IN SECTION 7.4.
8.1: In those matters in which a party is required by these terms to release, protect, defend, indemnify and hold harmless the other party and members of such party’s respective “Group”, SUCH OBLIGATION SHALL APPLY WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF, INCLUDING WITHOUT LIMITATION, THE NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, COMPARATIVE, CONTRIBUTORY, ACTIVE, PASSIVE, SIMPLE, GROSS OR OTHERWISE), STRICT LIABILITY, PREMISES LIABILITY, PRODUCT LIABILITY, MISREPRESENTATION, BREACH OF CONTRACT, BREACH OF WARRANTY, VIOLATION OF STATUTE, RULE OR LAW, OR OTHER FAULT OF ANY PERSON, ENTITY OR PARTY, INCLUDING WITHOUT LIMITATION, ANY OF MEMBER OF THE RELEASED OR INDEMNIFIED PARTY’S “GROUP” (COLLECTIVELY, “REGARDLESS OF FAULT”). THE PARTIES AGREE THIS STATEMENT COMPLIES WITH THE REQUIREMENT OF THE “EXPRESS NEGLIGENCE RULE” AND SIMILAR RULES OR REGULATIONS, BY EXPRESSLY STATING IN A CONSPICUOUS MANNER TO AFFORD FAIR AND ADEQUATE NOTICE THAT THESE TERMS HAVE PROVISIONS REQUIRING ONE PARTY TO BE RESPONSIBLE FOR THE NEGLIGENCE, STRICT LIABILITY, OR OTHER FAULT OF ANOTHER PARTY.
8.2: Seller shall release, protect, defend, indemnify and hold harmless (a) Buyer, its parent, subsidiaries and affiliates; (b) its and their working interest owners, co-lessees, co-owners, partners, joint venturers; (c) its and their contractors and subcontractors of any tier (other than any member of Seller Group); and (d) the respective members, managers, officers, directors, employees and invitees of all of the foregoing (collectively, “Buyer Group”) from and against any claim, liability, loss, demand, damage, lien, cause of action of any kind, order, subpoena, obligation, cost, expense, royalty, fee assessment, duty, charge, penalty, fine, judgment, interest, award (including attorneys’ fees and costs of litigation of the person asserting the claim), whether arising by law, contract, tort, voluntary settlement or in any other manner (collectively, “Claims”) that is brought by or on behalf any person or entity, alleging bodily injury, illness or death of any member of Seller Group, or the loss of or damage to any property of Seller Group (except as otherwise provided in Section 8.4(a), without limit and REGARDLESS OF FAULT.
8.3: Buyer shall release, protect, defend, indemnify and hold harmless (a) Seller, its parent, subsidiaries and affiliates; (b) its and their working interest owners, co-lessees, co-owners, partners, joint venturers; (c) its and their contractors and subcontractors of any tier; and (d) the respective members, managers, officers, directors, employees and invitees of all of the foregoing (collectively, “Seller Group”) from and against any Claim that is brought by or on behalf of any person or entity, alleging bodily injury, illness or death of any member of Buyer Group, or the loss of or damage to any property of Buyer Group, without limit and REGARDLESS OF FAULT.
8.4: Notwithstanding anything herein to the contrary, Seller shall not be responsible for, and Buyer shall release, protect, defend, indemnify and hold harmless Seller Group from and against any Claim that is brought by or on behalf of any person or entity alleging : (a) damage to or loss of Seller Group’s equipment, materials or supplies while the same are in Buyer Group’s care, custody or control (which includes without limitation, while such equipment, materials or supplies are below the surface), as well as the fishing or retrieval thereof and removal of associated debris; (b) loss of or damage to any well or hole, including the casing therein and the cost of re-drill; (c) blowout, fire, explosion or any uncontrolled well condition, including without limitation, the costs to control a wild well above or below surface and the removal of debris; (d) damage to or impairment of any reservoir, geological formation, underground strata or structure, or the loss of oil, gas, water or minerals therefrom or the right thereto; (e) damages arising from the use of Seller Group’s radioactive tools, including without limitation, the costs of control, removal and remediation; (f) pollution or contamination of any kind, including without limitation, the cost of control, removal and remediation thereof; (g) failure to select a sound location for the work site and any cratering or shifting arising therefrom; (h) above surface or subsurface trespass; (i) the Work’s infringement or misappropriation of the intellectual property rights of any person or entity; and/or (j) bodily injury, illness, death, property loss or property damage suffered by any person or entity not a member of Seller Group or Buyer Group, in each of the foregoing (a) through (j), without limit and REGARDLESS OF FAULT.
9.1: Each party, at its own expense, shall maintain the following insurance coverages with reputable insurance companies authorized to do business in the state where the Work is to be performed, or through a self-insurance program, to support its release, defense, indemnity and hold harmless obligations assumed in these terms:
9.1 a: Workers’ Compensation Insurance complying with applicable laws in the states in which the Work will be performed and Employer’s Liability Insurance in the amount of $1,000,000 covering the insured party’s employees working under these terms. A sole proprietor that does not purchase workers’ compensation coverage must execute an “Affidavit of Exempt Status Under the Workers Compensation Act”, or the equivalent under any applicable local legislation, and must submit a certificate of non-coverage from the state, if applicable.
9.1 b: Commercial General Liability Insurance in the amount of $1,000,000 combined single limit per occurrence, $2,000,000 general aggregate, including broad form contractual liability coverage for the named insured party’s contractual obligations covered in these terms, as well as “actions over” coverage, products and completed operations, sudden and accidental pollution, and a severability of interests clause.
9.1 c: Automobile Liability Insurance covering all vehicles owned or non-owned, operated and/or licensed in connection with the performance of the Work. The insurance to be provided shall include coverage for bodily injury, passenger hazard if applicable, and property damage, in the amount of $1,000,000 combined single limit.
9.2 d: Excess Liability Insurance over that required in (a), (b) and (c) in the amount of $5,000,000 each occurrence and in the aggregate, specifically including contractual liability coverage for the risks, obligations and indemnity obligations expressly assumed by under these terms.
9.2: To the extent of a party’s indemnification obligations under these terms, each party’s respective insurance policies shall be endorsed to (a) name the other party (and all members of its respective “Group”) as an additional insured (except workers’ compensation and employer’s liability); (b) provide that the insurer waives its rights of subrogation against the other party, its respective “Group” and their insurers; and (c) be primary as to any other insurance policies.
9.3: Such insurance shall support, but not limit, the parties’ respective obligation to release, protect, defend, indemnify and hold harmless, except to the extent required by applicable law. If it is judicially determined that the monetary limits of insurance required under Section 9.1 or the obligations to release, protect, defend, indemnify and hold harmless assumed herein exceed the maximum limits permitted under applicable law, said insurance and obligations shall automatically be amended to conform to the maximum monetary limits permitted under such applicable law.
10. Limitation of Liability
10.1: Notwithstanding anything herein to the contrary, in no event shall Seller be liable for, and Buyer shall release, protect, defend, indemnify and hold harmless Seller Group from and against any Claim relating to any and all indirect, special, incidental, punitive, exemplary or consequential damages, including without limitation, damages from loss of production, loss of revenue and profits, loss of business or business interruption, downtime, non-productive time (including associated spread costs) or loss of use of assets or facilities, arising from, related to or in connection with these terms, the performance or non-performance of the Work or Buyer’s use thereof, without limit and REGARDLESS OF FAULT.
10.2: Except for Seller’s obligations assumed in Sections 7.4 and 8.2 hereof, but otherwise notwithstanding anything herein to the contrary, Seller’s total liability for all Claims arising from the Work or these terms shall be limited to the purchase price of the Goods or Services to which such Claim arises, and Buyer shall protect, defend, indemnify and hold harmless Seller Group in excess of such amount, without limit and REGARDLESS OF FAULT.
11. Force Majeure
Except for the parties’ indemnification obligations and Buyer’s payment obligations for Work performed, neither party shall be considered in breach of these terms or the requirements of any Order if delayed or prevented from performing due to any act or event that renders it wholly or partially impossible for the affected party to perform its obligations under these terms any Order, when such act or event (a) is beyond the reasonable control of the affected party, (b) is not due to the fault or negligence of the affected party, and (c) could not have been avoided by the affected party by the exercise of reasonable diligence.
12. Confidentiality; Intellectual Property
12.1: In the event Seller provides Buyer any confidential or non-public information, including without limitation, technical or financial information relating to Seller’s Goods, Services or business operations (collectively, “Confidential Information”), Buyer agrees to hold such Confidential Information in strict confidence and use such Confidential Information only for the purposes of these terms and any applicable Order, and no Confidential Information shall be disclosed by Buyer without the prior written consent of Seller, except as may be necessary by reason of legal, accounting or regulatory requirements beyond the reasonable control of Buyer. Buyer shall safeguard Seller’s Confidential Information with at least the same degree of care that it uses to safeguard its own confidential, proprietary, privileged and trade secret information, and in any case, not less than a reasonable degree of care. The foregoing confidentiality obligations shall survive for five (5) years following applicable disclosure by Seller; provided, that, with respect to any Confidential Information that constitutes a “trade secret” (as defined by applicable law), such confidentiality obligations shall survive indefinitely so long as such Confidential Information remains a trade secret.
12.2: Seller’s copyrights, patents, trade secrets and other intellectual property rights associated with or incorporated in any ideas, concepts, know-how, processes or works of authorship (collectively, “Intellectual Property”) relating to Seller’s Goods, Services or business operations, including any developments, improvements or derivatives thereof, regardless of inventorship, are and shall remain the sole property of Seller. To the extent Seller’s Intellectual Property (or any development, improvement or derivative thereof) is incorporated into or necessary for the utilization of any Work provided to Buyer, Seller grants Buyer a non-exclusive, non-transferrable, non-sub-licensable, revocable, royalty-free, right and license to use such Intellectual Property incorporated or otherwise necessary for utilization. Except as expressly stated above, nothing in these terms shall grant Buyer any right or license to use, whether directly or indirectly, Seller’s Intellectual Property.
12.3: If any members of Seller Group or Buyer Group jointly develop any Intellectual Property, such jointly developed Intellectual Property shall be owned by Seller; provided, that, Seller agrees to grant Buyer a non-exclusive, non-transferrable, non-sub-licensable, revocable, royalty-free, right and license to use such jointly Intellectual Property to the extent it has been incorporated into the Work or is otherwise necessary for Buyer’s utilization thereof.
12.4: Except to the extent necessary for Buyer to perform authorized maintenance or repair thereon, Buyer shall not (and shall not instruct or permit any other person or entity) to disassemble any of Seller’s Goods or decompile, analyze or otherwise seek to reverse engineer any of Seller’s Goods (or software associated therewith) in an effort to discover its design, formulation or code used or embedded therein.
13. Compliance with Law
Buyer agrees to comply with all local, state and federal laws, rules and regulations applicable to Buyer’s use of Seller’s Goods and Services, and any ancillary business activities related thereto. Buyer warrants that Goods and Services obtained from Seller shall not be transported, imported, exported, re-exported, sold, transferred, diverted or otherwise disposed of in violation of any applicable laws concerning the transport, import, export or re-export of goods, software or technology, including without limitation, applicable customs regulations, the International Traffic in Arms Regulations, the Export Administration Regulations, and the regulations and orders issued and/or administered by the U.S. Department of the Treasury, Office of Foreign Assets Control or the Department of Transportation, as the same may be amended from time to time. Buyer shall release, protect, defend, indemnify and hold harmless Seller Group from and against any Claim arising from Buyer Group’s breach of this Section 13.0.
14. Governing Law
These terms, any applicable Orders and all Work performed in connection herewith, shall be governed by and construed in accordance with the laws of the State of Oklahoma without regard to any choice of law or conflicts of law provisions, and each party agrees that venue shall lie exclusively in Oklahoma County, Oklahoma. The terms of the United Nations Convention on the International Sale of Goods are expressly excluded and shall have no application to any Work performed or provided by Seller.
In the absence of an MSA executed between the parties, these terms and any applicable Order issued constitute the parties’ entire agreement with respect to the subject matter hereof. No amendment or modification of these terms shall be effective unless in writing and signed by an authorized representative of Seller and Buyer. If any term or condition herein shall be held invalid, unenforceable, or against public policy, such term or condition shall be deemed severable, and the validity, binding effect, and enforceability of the remaining provisions shall not be affected. Failure of Seller or Buyer to enforce any of the terms or conditions herein shall not prevent a subsequent enforcement of such terms or conditions or be deemed a waiver of any subsequent breach.