Customer's acknowledgement and acceptance of any design, quote, drawing or product (hereinafter "Products") from Oklahoma Safety Equipment Company, Inc. ("OsecoElfab") as evidenced by any order by Customer placed with OsecoElfab, shall constitute: (i) Customer's unconditional and full assent to and acceptance of the Terms and Conditions of Sale herein; and (ii) Customer's understanding and acceptance that the Terms and Conditions of Sale herein supersede, and shall not be modified or replaced, in whole or in part, by any other terms or conditions, whether such terms and conditions are or were contained in any previous or subsequent oral or written communication, promise or understanding between the parties, including, but not limited to, Customer's Purchase Order or shipping release. The Terms and Conditions of Sale herein are effective until specifically revoked by authorized persons of both OsecoElfab and Customer in writing.
1. Definitions - "Customer" or "Original Customer" shall mean the person or entity requesting a design, quote, drawing or product from OsecoElfab regardless of whether such person or entity is the end-user of the design, quote, drawing or product. "Date of Shipment" shall mean the actual date upon which the Products are delivered into the control of the carrier.
2. Limitation of Warranties. OsecoElfab makes NO warranties which extend beyond the express provisions stated herein. OsecoElfab wholly relies on, and Customer acknowledges the fact that Customer has supplied all of the necessary operating conditions, design parameters, process components or system or vessel requirements related to the Products. OsecoElfab specifically disclaims, and Customer agrees to fully indemnify, defend and hold OsecoElfab and its officers, employees and agents harmless from, any and all claims for injuries or damages to persons or property, including, but not limited to lost profits, attorney's fees and costs, either directly or indirectly resulting or arising from: (i) Customer's failure to fully disclose all material operating conditions, design parameters, process components or system or vessel requirements, whether through misrepresentation, mistake or otherwise; (ii) Customer's failure to use the Products in strict compliance with all material operating conditions, design parameters system or vessel requirements provided to OsecoElfab by Customer; (iii) Customer's use of the Products in multipart assemblies, or other assemblies, not wholly comprised of OsecoElfab manufactured Products; (iv) improper pressure relief system design or improper maintenance or installation of products; or (v) corrosion, erosion or malfunction caused by acids or other chemicals. OsecoElfab MAKES NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
OsecoElfab makes no express or implied warranties beyond the following provisions, which ONLY apply to the Original Customer: When the Products have not been modified and are properly installed in complete accordance with the written instructions supplied with the Products, then the Products will be free from defects in material and workmanship for a period of one (1) year from the Date of Shipment on all products with exception to the a.) Safety Plug Product for a period not to exceed 500 pumping hours b.) MVRD Product for a period of two (2) years from the Date of Shipment. THE EXPRESSED WARRANTIES HEREIN GIVEN ARE EXCLUSIVE AND IN LIEU OF ALL WARRANTIES EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY SHALL BE, AT OsecoElfab'S OPTION, EITHER THE REPAIR OR REPLACEMENT OF ANY DEFECTIVE PRODUCT RETURNED TO OsecoElfab WITHIN NINETY (90) DAYS OF THE DISCOVERY OF THE DEFECT.
3. Liability Limitations. OsecoElfab'S AGGREGATE TOTAL LIABILITY TO CUSTOMER FOR ANY AND ALL LOSS OR DAMAGE ARISING OUT OF CUSTOMER'S USE OR INABILITY TO USE THE PRODUCTS SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS. OsecoElfab shall have no liability, directly or indirectly, for loss or delay, or for the failure to perform or make delivery, due in whole or in part to any cause or occurrence beyond the reasonable control of OsecoElfab. Unless a shorter period is specifically prescribed herein, any claim of Customer for any cause whatsoever (whether based in contract, warranty, negligence, strict liability or otherwise) shall be deemed waived unless made in writing and received by OsecoElfab within sixty (60) days after receipt of the Products for which such claim is made, or if such claim is for latent defects, within sixty (60) days of discovery thereof, if discovery is within one (1) year from Date of Shipment.
4. Indemnity. Customer agrees to indemnify, defend and hold OsecoElfab and its officers, employees and agents harmless from any claims, judgments, damages, fines, penalties, costs, liabilities (including sums paid in settlement of claims) or loss including attorney's fees, arising from or related to Customer's purchase, installation or use of the product.
5. Price. All prices are based on current costs of labor and materials, and are subject to correction for any clerical errors. All prices for Domestic Orders are F.O.B.-Point of Manufacture. All prices for Export Orders are Ex Works-Point of Manufacture. Prices specified do not include sales, excise, or other taxes or duties payable as part of this transaction. All taxes or other duty presently or hereafter imposed on the manufacture, sale or delivery of any OsecoElfab Products ordered, including any increase of such taxes or duty, shall be charged to and paid by Customer in addition to the prices set forth in OsecoElfab's quotation.
6. Quotations. Unless otherwise specified, all quotations are firm for a period of thirty (30) days from the date the quotation was made, unless expressly adjusted or terminated at an earlier date by OsecoElfab.
7. Orders. All orders are subject to acceptance by OsecoElfab and assent to and acceptance of the Terms and Conditions of Sales by the Customer. OsecoElfab has a minimum charge of $300 on all domestic orders and a minimum charge of $300 on all international orders.
8. Export Control. The Customer acknowledges that the Products may include technology which is subject to United States export control laws and shall comply with all such applicable laws and regulations. Customer shall not export or re-export any technical data, information or any product based thereon, that it receives from OsecoElfab to any country or entity to which shipment or communication is prohibited by said laws or regulations unless properly authorized to do so by the United States Government.
9. Credit and Terms of Payment. Unless otherwise specified in writing, payment is due 30 days from Date of Shipment when credit has been extended to the Customer. If credit has not been extended to the Customer, a minimum deposit of 50% up to 100% of the quotation price, as determined solely by OsecoElfab, will be required at the time of the order with a net thirty (30) day term on the remaining amount.
OsecoElfab accepts Visa, MasterCard, American Express and Discover credit cards. Past due invoices will delay the shipment of any and all future orders. Customer's financial responsibility is at all times subject to approval of OsecoElfab credit department.
10. Delivery and Shipment. Shipment shall be made F.O.B.- Point of Manufacture for Domestic Orders and Ex Works-Point of Manufacture for export, no freight allowed. Unless authorized by an executive of OSCEO in writing, no change or modification of this shipping term will be recognized. Upon Customer request, OsecoElfab may prepay and add the freight amount to the invoice. UPS is OsecoElfab's standard carrier; requested use of all other carriers may be subject to additional service charges.
11. Shortages or Damage. Customer's claims for shortages in deliveries, if any, must be made in writing within ten (10) days after receipt of the Products. Loss or damage to any OsecoElfab Product in transit is the sole responsibility of the carrier.
12. Packing and Marking. Unless otherwise stated, all packing and marking will be in accordance with OsecoElfab standard practices for shipments. Special packaging, marking, export crating, etc. will be subject to additional charges.
13. Shipping Dates. Shipment dates are estimates only, based on current conditions and ability to secure labor, materials and parts and, where applicable, are estimated from the date approved drawings are received from Customer. OsecoElfab will not be liable for the failure or delay in making the delivery dates as proposed.
14. Force Majeure. OsecoElfab shall not be liable for any default or delay caused by any contingency beyond its control, including, without limitation, acts of God, wars, riots, embargoes, restraints affecting shipping, strikes, lockouts, fires, accidents, floods, droughts, earthquakes, high winds, other natural calamities, shortage of raw materials, demands or requirements of any government or other agency.
15. Cancellations. If orders accepted by OsecoElfab are cancelled by the Customer, the Customer shall pay all costs, expenses, losses, and damages sustained either directly or indirectly by OsecoElfab in connection with such termination, including administrative and engineering expenses. Minimum cancelation charge is 25% of the quotation amount.
16. Return of Products. No OsecoElfab Products may be returned to OsecoElfab without OsecoElfab's prior written consent and without OsecoElfab's shipping instructions. Collect shipments will not be accepted without OsecoElfab's prior written consent. No back charges will be accepted or credit given by OsecoElfab on returned Products. Charges may apply for inspection or repair of the returned Products. No returned Products will be accepted without the Material Safety Data Sheet attached.
17. Design. OsecoElfab reserves the right to make changes in the design of Products without notice and without incurring any obligation to furnish or install such changes and modifications on Products previously or subsequently sold.
18. Patent Infringement. Should Customer's drawings or specifications infringe or allegedly infringe upon a patent or trademark, OsecoElfab will in no way be responsible for any claims or damages resulting from the infringement or alleged infringement. Customer hereby agrees to indemnify, defend and hold OsecoElfab and its officers, employees and agents harmless from and against any and all claims or damages, including attorney's fees and costs, either directly or indirectly resulting or arising from such infringement or alleged infringement.
19. Confidentiality and Proprietary Information. Customer acknowledges that all drawings, reports, designs, data and technical and other information emanating from or provided by OsecoElfab pertaining to the Products or services provided to Customer and all information becoming known to Customer concerning OsecoElfab's Products, improvements, processes, methods or practices shall be maintained confidential by Customer and shall not be published, disseminated, revealed in any manner or to any party, or used in the design, manufacture, use or operation of Customer's business or products; provided that these provisions shall not apply to such information that was known to Customer at the same time it was obtained from OsecoElfab or acquired by Customer from a third party without such third party being under an obligation of confidentiality.
20. Patent Rights. OsecoElfab retains all rights of inventorship, including all rights, title, and interest, related to the conception, design, and/or manufacture of Products. In the event Customer, Customer’s employees, or Customer’s contractors (“Customer Inventors”) contribute to the conception and/or reduction to practice of any ideas, inventions, or improvements related to the conception, design, and/or manufacture of Products, Customer Inventors will assign and hereby expressly do assign to OsecoElfab, its successors, assigns and legal representatives, the entire rights, title, and interest in and to all said ideas, inventions, or improvements, including, but not limited to, the entire rights, title, and interest in and to all subject matter invented by Customer Inventors related to Products and disclosed in any Application for Letters Patent of the United States, and in and to all Letters Patent and all Convention and Treaty rights of all kinds, and the rights arising therefrom, in all countries throughout the world.
21. Anti-Bribery. The Customer shall not, and undertakes to procure that its employees, officers, agents, subcontractors, or anyone acting on their behalf shall not directly or indirectly give, offer to give, agree to give or authorize the payment of, any gift or consideration of any kind as an inducement or reward to any Government Representative or any person acting for or on behalf of any Government Representative; or any other person at the request of any Government Representative, for the purpose of improperly obtaining, retaining or directing business or to secure or obtain any improper business advantage; or directly or indirectly accept any gift or consideration of any kind as an inducement or reward for the purpose of improperly obtaining,retaining or directing business or to secure or obtain any improper business advantage. The Customer represents, warrants and undertakes that it, or any person acting on its behalf, has not undertaken any activity to which Clause 21 refers prior to the Contract (or any related agreement) being made; implemented and maintained policies, procedures and controls which are reasonably expected to ensure, and to continue to ensure, compliance with all applicable Anti-Bribery Regulations; and conducted, and will continue to conduct, its business in compliance with all applicable Anti-Bribery Regulations and so as not to contravene or commit any offence under such Anti-Bribery Regulations.
22. Waiver of Breach and Severability. The waiver by OsecoElfab of Customer's breach of any term or condition herein shall not constitute a waiver of any subsequent breach of the same or any other term or condition. If any provision of the Terms and Conditions of Sale herein are held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of the Terms and Conditions of Sale will not be affected or impaired and all remaining terms shall remain in full force and effect.
23. Choice of Law. The agreement arising from the acceptance of the Terms and Conditions of Sale, as well as the Terms and Conditions of Sale itself, shall be construed in all respects according to the applicable laws of the State of Oklahoma.