Standard terms and conditions
NOTE: THIS AGREEMENT CONTAINS PROVISIONS THAT INDEMNIFY AND/OR RELEASE THE INDEMNIFIED AND/OR RELEASED PARTY FROM THE CONSEQUENCES OF ITS OWN NEGLIGENCE AND OTHER LEGAL FAULT.
Orders for the sale of products or rental of equipment (“Products”) or for services (“Services”) to be provided by American Completion Tools Incorporated, or its direct or indirect subsidiaries and affiliated or related companies (in each case such company is referred to herein as “SUPPLIER”) to its customers (each a “BUYER”) are subject to acceptance by SUPPLIER, and any orders so accepted will be governed by the terms and conditions stated herein and any additional terms proposed or agreed to in writing by an authorized representative of SUPPLIER (these terms and conditions and any such additional terms collectively referred to herein as the “Agreement ”).
- PAYMENT TERMS
For credit card or eCheck orders, the full purchase price for Products or Services shall be paid at the time of purchase. For orders made with a American Completion Tools line of credit (Purchase order), payment will be made according to BUYER’s negotiated payment terms.
- CANCELLATION AND RETURNS
BUYER’s orders are a final sale. Orders are not subject to cancellation by BUYER for any reason.
Sales, ad valorem and other applicable taxes will be charged and collected on all purchases as required by appropriate law. BUYER shall be responsible for and pay any other taxes or related assessments that may be applicable to transactions hereunder. Additionally, BUYER shall pay all applicable customs, excise, import, export and other duties.
- RISK OF LOSS AND TITLE
- Unless otherwise agreed to in writing between SUPPLIER and BUYER: (i) for Product sales within the United States of America, title and risk of loss shall pass to BUYER as soon as the Products depart SUPPLIER’s point of origin; and (ii) for Product sales outside the United States of America, INCOTERM 2010 “FOB” shall apply.
- For Products provided on consignment, the risk of loss shall pass to BUYER as soon as the Products depart SELLER’s point of origin; however, the title shall remain with SELLER until the Product is used by BUYER.
- LIABILITIES, RELEASES AND INDEMNIFICATION:
- Notwithstanding anything to the contrary in this Agreement or elsewhere, the parties agree that BUYER shall, to the maximum extent permitted under law, release, defend, indemnify and hold SUPPLIER, its parent, affiliated and related companies and each of its/their respective directors, officers, employees, consultants, agents and invitees (“SELLER GROUP”), harmless from and against any and all claims, demands, causes of action, liabilities, damages, judgments, awards, losses, costs, penalties, fines and expenses (including, without limitation, reasonable attorneys’ fees and costs of litigation) of any kind or character arising after risk of loss has passed to BUYER in accordance with Article 4, asserted by or in favor of any person, party or entity (including but not limited to BUYER, SUPPLIER or any third party) (“Claims”) for damage to or loss or destruction of real or personal property, personal or bodily injury to, sickness, disease or death of any person, and/or any indirect, incidental, special, punitive, exemplary or consequential damages or losses (which shall include any and all damages and losses for lost production, lost revenue, lost product, lost profit, lost business or business interruptions), REGARDLESS OF THE CAUSE, INCLUDING WITHOUT LIMITATION ANY FORM OF NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY (EXPRESS OR IMPLIED), BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF CONTRACT, OR ANY OTHER LEGAL FAULT OR RESPONSIBILITY OF SUPPLIER, BUYER, OR ANY OTHER PERSON, PARTY OR ENTITY. REDRESS UNDER THE INDEMNITY PROVISIONS SET FORTH IN THIS ARTICLE 5 IS THE EXCLUSIVE REMEDIES AVAILABLE TO THE PARTIES HERETO FOR THE CLAIMS COVERED BY THIS PROVISION.
- SELLER warrants that the Products to be provided shall conform to a generally recognized range for typical physical properties established by SELLER. In the event that SELLER’s Products are defective in that they fail to comply to the foregoing standards, then at SELLER’s option and as BUYER’s sole remedy for such non-conformance, SELLER shall either: (i) repair or replace such defective Products with the type originally furnished, (ii) offer a refund, or (iii) offer a credit; provided SELLER is notified thereof in writing within thirty (30) days after delivery of the particular Products in question. SELLER’s warranty obligations shall not apply if the non-conformity was caused by: (i) failure to properly store the Products by any person, party or entity other than SELLER, (ii) unauthorized modification, alteration or repair of the Products by any person, party or entity other than SELLER, (iii) use or handling of the Products by any person, party, or entity in a manner inconsistent with SELLER’s recommendations, (iv) failure to maintain or service the Products as recommended by SELLER, (v) abnormal operating conditions , or (vi) vandalism or force majeure.
- All non-conforming Products shall be delivered to the service facility designated by SELLER. All transportation charges and removal and reinstallation charges related to the repair or replacement of non-conforming Products shall be borne by BUYER. Any parts for which SELLER provides replacement under this warranty shall become the property of SELLER. With regard to materials or equipment furnished by third party vendors and/or suppliers, SELLER’s liability therefor shall be limited to the assignment of such third party vendor’s or supplier’s warranty to BUYER, to the extent such warranties are assignable. The warranty period for any repaired or replaced Products shall be only for the remainder of the original warranty period.
- SELLER warrants that the Services to be provided shall conform to the specifications set forth by SELLER. In the event such Services are defective, in that they fail to comply with the foregoing standard, then at SELLER’s option and as BUYER’s sole remedy for such non-conformance, SELLER shall either: (i) re-perform such defective Service, (ii) offer a refund, or (iii) offer a credit; provided SELLER is notified in writing within thirty (30) days following delivery of the final report or other documentation agreed to be provided by SELLER at the conclusion of Services. SELLER’s warranty obligations shall not apply if the non-conformity was caused by: (i) incorrect or incomplete specifications provided by BUYER, (ii) failure of BUYER to send samples to SELLER in accordance with SELLER’s recommendations, or (iii) vandalism or force majeure.
- Interpretations, research, analysis, recommendations, advice or interpretational data (“Interpretations or Recommendations”) furnished by SELLER are opinions based upon inferences from measurements, empirical relationships, assumptions and industry practice, which inferences, relationships, assumptions and practices are not infallible, and with respect to which professional geologists, engineers, drilling consultants, analysts and other professionals may differ. Accordingly, SELLER does not warrant the accuracy, correctness or completeness of any such Interpretations or Recommendations or that BUYER’s reliance, or any third party’s reliance, on such Interpretations or Recommendations will accomplish any particular results. BUYER ASSUMES FULL RESPONSIBILITY FOR THE USE OF SUCH INTERPRETATIONS OR RECOMMENDATIONS AND FOR ALL DECISIONS BASED THEREON AND BUYER HEREBY AGREES TO RELEASE, DEFEND, INDEMNFY AND HOLD SELLER GROUP HARMLESS FROM ANY CLAIMS ARISING OUT OF THE USE OF SUCH INTERPRETATIONS OR RECOMMENDATIONS.
- SELLER will endeavor to transmit data to BUYER as accurately and securely as practicable in accordance with current industry practice. Notwithstanding the foregoing, SELLER does not warrant the accuracy of data transmitted by electronic processes and will not be responsible to BUYER for accidental or intentional interception of such data by others.
- SELLER does not represent or warrant that the Products are or will be compliant with the requirements of REACH (the Registration Evaluation Authorization and Restriction of Chemicals Regulation 1907/2006, as amended) and all implied warranties as to compliance with REACH (“REACH Compliance”) are hereby excluded to the fullest extent permitted by law. Without prejudice to the foregoing, SELLER shall use reasonable endeavors to obtain or maintain REACH Compliance in respect of the Products where required by law, unless it is BUYER’s responsibility to obtain or maintain REACH Compliance or any non-compliance is caused by any act or omission of BUYER. In the event SELLER receives written notice from any competent authority, or in its reasonable opinion decides, that any of the Products are not or will not become REACH Compliant, it shall inform BUYER in writing within a reasonable time and may suspend any further deliveries of the relevant Products and/or terminate the Order. BUYER shall promptly provide such information to SELLER as may be required in order to obtain and maintain REACH Compliance in respect of the Products and shall comply with its obligations under REACH.
- THIS ARTICLE 6 SETS FORTH BUYER’S SOLE REMEDIES AND SELLER’S ONLY OBLIGATION WITH REGARD TO DEFECTIVE OR NON-CONFORMING PRODUCTS, EQUIPMENT, MATERIALS AND SERVICES. EXCEPT AS IS OTHERWISE EXPRESSLY PROVIDED PURSUANT TO THE PROVISIONS OF THIS ARTICLE 6, SELLER MAKES NO WARRANTY OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR RIG TIME INCURRED BY BUYER AS A RESULT OF DEFECTIVE OR NON-CONFORMING PRODUCTS, EQUIPMENT, MATERIALS OR SERVICES.
Upon written request, BUYER shall furnish to SUPPLIER certificates of insurance evidencing that adequate insurance to support BUYER’S obligations hereunder has been secured. BUYER agrees that all such insurance policies shall (i) be primary to SUPPLIER’S insurance, (ii) include SUPPLIER, its parent, subsidiary and affiliated or related companies and its and their respective officers, directors, employees, consultants and agents as additional insured, and (iii) be endorsed to waive subrogation against the SUPPLIER, its parent, subsidiary and affiliated or related companies and its and their respective officers, directors, employees, consultants and agents.
- CHANGE OF DESIGN
SUPPLIER expressly reserves the right to change or modify the design and construction of any of its Products without obligation to furnish or install such changes or modifications on Products previously or subsequently sold.
- PATENTS; INTELLECTUAL PROPERTY RIGHTS
All SUPPLIER marks used on the Products are the property of SUPPLIER and all goodwill associated with those marks shall inure to the benefit of SUPPLIER. Unless SUPPLIER provides written consent, BUYER shall not make copies of any SUPPLIER marks or apply such marks to anything other than the Products and at all times, BUYER shall remain subject to the indemnities set forth in Article 9.
The design, construction, application and operation of SUPPLIER’s Products and/or Services embody proprietary and confidential information. BUYER shall maintain this information in strict confidence and shall not disclose it to others, subject only to disclosure required by law or legal process.
The sale of Products by SUPPLIER to BUYER does not convey to BUYER any intellectual property, including, but not limited to copyrights, patents, patent applications and trade secrets (“Intellectual Property”) rights contained in or associated with the Products. The BUYER shall have no Intellectual Property rights in the Products and/or Services and all Intellectual Property rights shall continue to be the property of SUPPLIER. BUYER shall not resell the Products to others or reverse engineer or permit others to reverse engineer, for any purpose, including the manufacturing of similar Products. BUYER shall be required to maintain the brand contained on the Products, including leaving intact all logos and color schemes.
In the event that SUPPLIER owns copyrights to, patents to, or has filed patent applications on, any technology related to the Products or Services furnished by SUPPLIER hereunder, and if SUPPLIER makes any improvements on such technology, then such improvements shall fall within the confidentiality obligations of SUPPLIER included herein, and SUPPLIER shall own all such improvements, including drawings, specifications, calculations and other documents.
- FORCE MAJEURE
If either party is unable by reason of Force Majeure to carry out any of its obligations under this Agreement, other than obligations to pay money, then on such party giving notice and particulars in writing to the other party within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended. “Force Majeure” shall include any event that is beyond the reasonable control of the party so affected including, without limitation, acts of God, laws and regulations, government action, war, civil disturbances, hijack, piracy, criminal action by a third party, threats or acts of terrorism, strikes and labor problems, delays of vendors or carriers, lightening, fire, flood, washout, storm, breakage or accident to equipment or machinery, and shortage of raw materials.
- INDEPENDENT CONTRACTOR
It is expressly understood that SUPPLIER is an independent contractor, and that neither SUPPLIER nor its principals, partners, employees or subcontractors are servants, agents or employees of BUYER.
- LAWS, RULES, REGULATIONS, AND EXPORT CONTROL
SUPPLIER and BUYER agree to and will comply with all laws, rules, regulations and decrees of any governmental or regulatory body having jurisdiction over the Products or Services to be provided by SUPPLIER or the work site or that may otherwise be applicable to SUPPLIER’s or BUYER’s performance under this Agreement.
BUYER acknowledges that Products, Services and/or related technical data covered by this Agreement may be subject to U.S. and/or foreign trade controls. BUYER agrees that it will not sell, re-export or transfer Products and/or related technical data except in full compliance with all governmental requirements including but not limited to economic sanctions and export controls administered by the U.S. Department of Treasury, U.S. Department of Commerce and U.S. Department of State. BUYER shall not use, dispose of, supply, export, re-export, or transfer the goods knowing or having reason to suspect that the goods will be used, directly or indirectly, for, in, or relating to any of the following conditions, all of which are integral to sale: (i) nuclear explosive activities; (ii) safeguarded or unsafeguarded nuclear activities; (iii) the design, development, production, or use of rocket systems or unmanned air vehicles; (iv) the design, development, production, stockpiling, or use of chemical or biological weapons; (v) use in connection with a foreign maritime nuclear propulsion project; (vi) the design, development, production, stockpiling, or use of nuclear explosive devices, missiles, chemical, or biological weapons; (vii) any person designated on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Department of the Treasury, Office of Foreign Assets Control; (viii) any person on the Entity List or Denied Person List administered by the U.S. Department of Commerce, Bureau of Industry and Security; (ix) any project or person or company that is in or involves Cuba, Iran, North Korea, Sudan, or Syria; or (x) any person or entity that is subject to sanctions imposed by the U.S. Government for any reason relating to U.S. export or economic sanctions. SUPPLIER is relying on BUYER’s adherence to all of these listed conditions. BUYER agrees to comply with all SUPPLIER requests for trade compliance information, statements, and other assurances including, without limitation, requests for End-User and Routed Transaction certifications. Any breach of this Article 14 provision shall be deemed a material breach of this Agreement and sufficient basis for SUPPLIER to reject any or all orders or, to terminate the Agreement, and to rescind the purchase, in which event merchandise must be returned at BUYER’s sole expense. Further, failure to abide by any of these conditions could, in some circumstances, be a violation of U.S. law.
SUPPLIER reserves the right to refuse to fulfill any order or otherwise perform under this Agreement if SUPPLIER in its sole discretion determines that such action may violate any law or regulation. BUYER agrees that such refusal, cancellation, or termination of the Agreement by SUPPLIER will not constitute a breach of SUPPLIER’s obligations under this Agreement and BUYER hereby waives any and all claims against SUPPLIER related to such refusal, cancellation, or termination.
- ULTIMATE COUNTRY OF USE
Buyer shall only use the Products in the country or assigned geographic area which the Products are designated to be shipped to, or used in, as set forth in the Order. Products shall not be used in countries sanctioned by the U.S. government.
- LIENS, ATTACHMENTS AND ENCUMBERANCES.
BUYER grants to SUPPLIER a lien upon and a security interest in: (i) any interest that BUYER now owns or hereafter acquires in the lands, leasehold interests, pipelines, pipeline right-of-ways, personal property and fixtures arising out of, pertaining to, located on, or used in connection with the development of, the mineral property on which the Products are installed (the “Mineral Property”), (ii) the oil and gas when extracted from the Mineral Property, including the proceeds thereof, (iii) the contract rights, inventory and general intangibles pertaining to the Mineral Property, and (iv) any claim against any working interest owner of the Mineral Property arising from nonpayment of joint interest billings or lease operating expenses. This lien and security interest shall be for the purpose of securing performance of BUYER’s obligations to SUPPLIER under this Agreement. BUYER authorizes SUPPLIER to have filed a financing statement and any other instruments SUPPLIER determines to be necessary or appropriate to perfect the lien and security interest created hereby. Upon request, BUYER shall execute any document determined by SUPPLIER to be necessary or appropriate to perfect this lien and security interest under all applicable laws and the real property recording statutes of the state in which the Mineral Property is located. If SUPPLIER is unable to obtain proper execution of such documentation within a reasonable period of time after the request is made, then BUYER hereby appoints SUPPLIER as BUYER’s true and lawful agent and attorney-in-fact, to execute all documents on its behalf, and to otherwise take such actions on its behalf, as SUPPLIER deems necessary or appropriate, to perfect the lien and security interest created or contemplated hereby. This appointment is coupled with an interest and may not be revoked for as long as any portion of BUYER’s obligations hereunder remains outstanding. The lien and security interest created hereby are in addition to, and not in lieu of, any other liens and security interests now existing or hereafter coming into existence, and securing the performance of BUYER’s obligations hereunder, whether voluntary or involuntary, including any liens arising by statute or common law in favor of mechanics and/or materialmen.
- GOVERNING LAW AND ARBITRATION
ANY DISPUTE, CONTROVERSY OR CLAIM (“DISPUTE”) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION CONDUCTED IN ACCORDANCE WITH THE FOLLOWING:
- For Products or Services provided, or to be provided, by SUPPLIER in North or South America, arbitration shall be conducted in accordance with THE COMMERCIAL RULES OF ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION (THE “RULES”) AND SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF OKLAHOMA, EXCLUDING CONFLICTS OF LAW AND CHOICE OF LAW PRINCIPLES. The seat of arbitration shall be Houston, Texas, and the proceedings shall be conducted and concluded as soon as reasonably practicable, based upon the schedule established by the Tribunal.
- For Products or Services provided, or to be provided, by SUPPLIER anywhere other than North or South America arbitration shall be conducted in accordance with THE UNCITRAL ARBITRATION RULES (THE “RULES”) AND SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH ENGLISH LAW, EXCLUDING CONFLICTS OF LAW AND CHOICE OF LAW PRINCIPLES. The appointing authority under the Rules shall be the London Court of International Arbitration. The language of the arbitration shall be English. The seat of arbitration shall be London, England, and the proceedings shall be conducted and concluded as soon as reasonably practicable, based upon the schedule established by the Tribunal.
- For any arbitration conducted hereunder, the Tribunal shall be composed of one (1) neutral arbitrator if the Dispute involves a maximum exposure of less than $1,000,000. If the parties are unable to agree on a neutral arbitrator, one will be appointed pursuant to the Rules. If the Dispute involves a maximum exposure equal to or in excess of $1,000,000, then the Tribunal shall consist of three (3) arbitrators, with each party appointing one arbitrator, and the two arbitrators so appointed appointing the third arbitrator who shall act as Chair.
- For any arbitration conducted hereunder, judgment upon the award rendered by the Tribunal pursuant hereto may be entered in, and enforced by, any court of competent jurisdiction. All statutes of limitation that would otherwise be applicable shall apply to the arbitration proceeding. Any attorney-client privilege and other protection against disclosure of privileged or confidential information, including, without limitation, any protection afforded the work-product of any attorney, that could otherwise be claimed by any party shall be available to, and may be claimed by, any such party in any arbitration proceeding. The parties shall treat all matters relating to and included in the arbitration as confidential further including all proceedings thereof. Subject to each party’s right to cooperate fully with the United States authorities, the parties understand and agree that this confidentiality obligation extends to information concerning the fact of any request for arbitration, any ongoing arbitration, as well as all matters discussed, discovered, or divulged, (whether voluntarily or by compulsion) during the course of such arbitration proceeding.
SUPPLIER shall have the right to assign this Agreement to any of its subsidiaries, affiliated or related companies without the consent of BUYER and shall have the right to terminate this agreement if BUYER assigns it without SUPPLIER’s consent.
Failure of BUYER or SUPPLIER to enforce any of the terms and conditions of this Agreement shall not prevent a subsequent enforcement of such terms and conditions or be deemed a waiver of any subsequent breach. Should any provision of this Agreement, or a portion thereof, be unenforceable or in conflict with governing country, state, province, or local laws, then the validity of the remaining provisions, and portions thereof, shall not be affected by such unenforceability or conflict, and this Agreement shall be construed as if such provisions, or portion thereof, were not contained herein. This Agreement contains all representations of the parties and supersedes all prior oral or written agreements or representations. BUYER acknowledges that it has not relied on any representations other than those contained in this Agreement. This Agreement shall not be varied, supplemented, qualified, or interpreted by any prior course of dealing between the parties or by any usage of trade and may only be amended by an agreement executed by both parties.
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- LICENSE AND SITE ACCESS
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- COMMENTS, COMMUNICATIONS, AND OTHER CONTENT
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- PRODUCT DESCRIPTIONS
We attempt to be as accurate as possible. However, we do not warrant that descriptions of Products, Service or other content of this site are accurate, complete, reliable, current, or error-free.
American Completion Tools
3083 S. Burleson Blvd
Burleson, TX 76028