Titan Division Terms and Conditions of Sale
Hunting Titan, Inc.
Titan Terms and Conditions of Sale Effective February 7, 2018
1. TERMS OF CONTRACT: These terms and conditions apply to all sales of goods (the“Products”) by Hunting Titan, Inc. (“Seller”). All orders submitted by Buyer (each an “Order”) shall be deemed to be an offer by Buyer to purchase the Products subject to these terms and conditions. Acceptance of Buyer’s Order is expressly limited to these terms and conditions, and the quotation, if any, and order acceptance issued by Seller (the “Contract”). Notwithstanding any oral or written statement made by Buyer, Seller’s acceptance of Buyer’s Order does not in any way constitute acceptance of Buyer’s terms and conditions, and Buyer’s terms and conditions are rejected and do not form a part of the Contract unless an authorized official of Seller expressly agrees in writing to accept such terms and conditions or any part thereof. No Order shall be binding on Seller until accepted in writing by an authorized official of Seller. Seller is under no obligation to accept any Order. Any quotation is valid for thirty (30) days, unless otherwise indicated on the quotation. All quotations are subject to change at any time. No contract shall come into existence until Seller issues an order acceptance or delivers the Products to Buyer.
2. PRICES: All prices are subject to change without notice. Prices do not include packing and preparation for shipment, freight, loading, unloading, carriage, insurance, forwarding fees, duties of any kind or similar fees or charges applicable to the Products. Buyer agrees to pay such charges upon receipt of Seller’s invoice.
3. TAXES: Prices do not include sales, use, excise, value-added, or other similar taxes, duties, charges, or fees (or any related fines, penalties, or interest) (collectively, “Taxes”), now or thereafter enacted, applicable to the Products sold, the Contract, or this transaction; any such Taxes will be added by Seller to the sales price where Seller is required by law to collect the same, and will be paid by Buyer unless Buyer provides Seller with a proper tax-exemption certificate.
4. TITLE AND DELIVERY: The agreed upon delivery dates are based on the Seller's projected lead time, current inventory, commitments and its suppliers advice. All shipment and delivery dates are estimates only. All shipments shall be FCA Seller's designated facility (Incoterms 2010) unless otherwise specified in writing on the Order. The method and route of shipment shall be at Seller's discretion, unless Buyer supplies explicit reasonable instructions in writing at least ten (10) days prior to shipment. Buyer assumes title and risk of loss of the Products upon the Products being presented for delivery, regardless of whether Seller has arranged for the transportation of the Products. Seller is not responsible for any installation of Products sold hereunder or delays caused by Buyer specified suppliers. Seller shall not be liable to Buyer for any damages, losses or expenses if Seller fails to meet the estimated delivery date. Seller may deliver the Products in installments. Claims for shortages must be made in writing within ten (10) days of Buyer’s receipt of shipment, or Buyer is deemed to have waived such claims.
5. TERMS AND METHOD OF PAYMENT: All payments shall be made within thirty (30) days of the date of Seller’s invoice. Seller may suspend credit to Buyer and may withhold shipment of Products ordered or suspend or cancel performance if, in Seller’s sole discretion, Buyer’s financial condition warrants any such action. If the Products are delivered in installments, Buyer shall pay for each installment in accordance with the terms of payment hereof. Payment shall be made for the Products without regard to whether Buyer has made or may make any inspection of the Products. If shipments are delayed by Buyer, payments are due from the date when Seller is prepared to make delivery. Products held for Buyer, shall be held at Buyer’s sole risk and expense. Products held for more than thirty (30) days may incur reasonable storage charges. All amounts due shall be paid in US Dollars directly to Seller as directed by Seller on its invoice or otherwise as specified in a written notice. Delinquent invoices are subject to a monthly service charge of the lower of eighteen percent (18%) per annum or the maximum rate allowed by law, which shall be added to the invoice amount. Notwithstanding anything herein to the contrary, if Buyer fails to fulfill the terms of payment, Seller may defer further shipments, or may, at its option, cancel the unshipped balance. Seller reserves the right, prior to making any shipment, to require from Buyer satisfactory security for performance of Buyer’s obligations. Buyer retains a security interest in Products until it receives payment in full.
6. CANCELLATION OR RESCHEDULING: Buyer may request changes, including rescheduling or canceling, of all or a portion of an Order. Seller reserves the right to reject any change or cancellation to an Order or to accept such change or cancellation and assess a ten percent (10%) restocking fee.
(1) No credit shall be given for any item returned unless returned with Seller’s written Return Materials Authorization (“RMA”).
(2) Seller shall not be responsible for holding or accounting for any items returned without the required RMA.
(3) Risk of loss or damage in respect of any item returned with Seller’s
authorization will remain with Buyer until redelivered to Seller.
(4) A charge of not less than fifteen percent (15%) or such larger amount as Seller may consider reasonable in the circumstances, with a minimum of $10.00 per item, will be charged by Seller on all items returned to pay for cost of inspection, repacking, handling, credit arrangements, etc.
(5) Buyer is responsible for all costs of returning the items to Seller’s
(6) No credit will be given on any non-standard item manufactured at the request of Buyer or to the individual specifications of Buyer.
(7) All gun hardware and other items used with explosives must be inspected by Buyer prior to shipping to assure that no explosive is present before packing and return shipment to Seller’s designated facility.
(8) Seller will notify Buyer and, as appropriate, applicable regulatory agencies (such as US DOT and/or ATF) of any shipment not in full compliance with all applicable regulations and laws.
(9) A copy of the original packing list and the RMA must accompany all returns.
(10) To request a RMA, Buyer must (a) identify the item (part number, description, date(s) of manufacture as indicated on the package label, quantity, weight) and (b) certify that the items are in their unopened, "like new" package, and to the best of the Buyer's knowledge the items in the package are undamaged. Once the RMA is obtained, the Buyer must notify the Seller’s Manager of the shipping details and expected delivery date. Credit will only be issued if these procedures are followed.
B. Explosives Items.
(1) The sale of all explosives items is final.
(a) Only the Manager of the Seller’s applicable selling location may approve an RMA for the return of explosives items and only after the Manager has received approval to accept the return from the US Director of Sales and Distribution or equivalent person in the country of sale.
(b) Only unopened packages of “normally stocked” items may be returned for credit within 30 days of the date of the sale. Other items such as "special orders" are not eligible for return.
(c) The packages and explosive items must be in sellable condition.
(d) All other returns are subject to Seller’s prior written approval.
(2) Packaging of explosives items is subject to government regulation.
(a) Return packaging must comply with applicable regulations.
(b) Unless specifically approved by the applicable governmental agencies, different explosives items cannot be mixed in a package.
(c) Return packaging material must be identical to the original packaging (i.e., from same package manufacturer, in accordance with the governmental approval).
(d) All package labeling and marking must be in original condition and securely attached to the packages. Labels and markings must include the correct part number, description, date(s) of manufacture as indicated on the original package label, quantity, weight, and required hazardous material markings and labels.
(e) As shipper of the return items, the Buyer must execute all appropriate and required regulatory and freight shipping papers.
(f) Only returns meeting the above stated requirements will be accepted by Seller.
8. CONTINGENCIES: Seller shall be excused from performance and shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond its reasonable control, including, but not limited to, war (whether an actual declaration thereof is made or not), sabotage, terrorism, insurrection, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of government or any agency or subdivision thereof affecting the terms of this Contract, prohibiting or penalizing Seller’s performance, or otherwise, judicial action, labor dispute, accident, fire, explosion, flood, storm or other natural disaster or force of nature, shortage of labor, fuel, raw material or machinery or technical or yield failure. In the event of any such delay, the date of delivery or performance shall be deferred for a period equal to the time of any such delay. If any such contingencies occur, Seller may equitably allocate production and deliveries among Seller’s customers.
9. SUBSTITUTIONS AND MODIFICATIONS OF PRODUCTS: Seller may modify the specifications of Products and substitute Products manufactured to such modified specifications for those specified herein provided such Products conform to this Contract.
A. Seller, except as otherwise hereinafter provided, warrants Products manufactured by Seller when properly stored, commissioned, installed, maintained and used in conformity with the applicable technical guidelines for the Product will conform to Seller’s specifications for a period of six (6) months from date of shipment (“Warranty Period”). The Warranty Period for subsurface electronic equipment is ninety (90) days from receipt by Buyer. Scintillation detectors are only warranted to be in working condition upon delivery to Buyer.
B. If any items sold to Buyer by Seller contain any parts or materials obtained by Seller from any other party, these parts or materials are sold to Buyer “AS IS.” If the manufacturer of such parts or materials provides a warranty, Seller will assign all warranties and/or guarantees associated with such third party parts and materials to Buyer. If such warranties or guarantees are not assignable, Seller will provide Buyer reasonable assistance in the enforcement of such warranties or guarantees at Buyer’s cost and expense.
C. The warranty in Section 10.A does not apply to: (i) defects caused by or contributed to by Buyer, or abrasive materials, corrosion due to aggressive fluids, (ii) Products or parts which are normally consumed in operation or have a normal life shorter than the Warranty Period, (iii) alterations or repairs carried out without the prior written approval of Seller, (iv) use of the Product for a purpose other than that for which it was intended, (v) defects arising from or in connection with information, drawings, charts, specifications or instructions by Buyer, (vi) experimental or developmental Products, or (vii) any Product that has had its serial number or temperature indicator altered, defaced or removed. The above warranty does not apply to subsurface electronic equipment when used in a down-hole drilling environment such as MWD or LWD operations.
D. If, during the Warranty Period, Buyer in good faith believes that Products are nonconforming, Buyer shall give written notice to Seller specifying in detail the nonconformity within fifteen (15) days of discovery of such nonconformity. The notice must include the item’s description, part number, serial number (if any), date of shipment or delivery and a full description of the circumstances giving rise to the claim. If notice of nonconformity is timely given, then upon receipt of a written RMA by Seller, the Products may be returned at Buyer’s cost and expense as discussed in Section 7.
E. To be eligible for a credit or replacement of such Products, Buyer must return the Products to Seller, transportation charges prepaid by Buyer, within fifteen (15) days of receipt of Seller's RMA. If Seller determines that the Products are nonconforming, Seller, at its option, shall (i) repair the Products or otherwise replace the Products, or (ii) credit the purchase price paid by Buyer for such Products, less reasonable depreciation. Such repair, replacement or credit shall be Seller’s sole obligation and Buyer’s sole and exclusive remedy for breach of warranty hereunder for all warranted Products. If the nonconforming nature of the Product was caused by Buyer or its agents, employees or subcontractors, then Buyer shall be liable for the cost of repair or replacement and all associated costs therewith including, without limitation, return transportation charges, testing, and inspection costs. In no event shall the repair or replacement of the Products therein extend the Warranty Period for such Products. Acceptance of returned Products or authorization of return of Products shall not be deemed as Seller's concession or acknowledgment of nonconformity with respect to any Products.
F. EXCEPT AS PROVIDED ABOVE, SELLER MAKES NO WARRANTIES,
TERMS OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, ABOUT THE PRODUCTS OR THE SUITABILITY, LEGALITY OR ACCURACY OF INFORMATION OR PRODUCTS PROVIDED BY SELLER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, TERMS OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.
THE WARRANTY EXPRESSLY MADE ABOVE IS THE ONLY WARRANTY MADE BY SELLER AND CAN BE AMENDED ONLY BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
11. INTELLECTUAL PROPERTY/INFRINGEMENT:
A. If Seller determines or believes that any Products manufactured and supplied by Seller to Buyer may be subject to any claim that it infringes any US patent, copyright, or trade secret, Seller may, at its option and at its expense, and as Buyer’s sole and exclusive remedy (i) procure for Buyer the right to use such Products free of any liability for infringement, or (ii) replace such Products with a non-infringing substitute otherwise complying substantially with the specifications, or (iii) refund the purchase price paid by Buyer for such Products, less reasonable depreciation.
B. If the infringement by Buyer is alleged prior to completion of delivery of the Products under this Contract, Seller may decline to make further shipments without being in breach of this Contract.
C. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF
THE PARTIES HERETO FOR PATENT, COPYRIGHT, OR TRADE SECRET
INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.
12. LIMITATION OF LIABILITY:
A. BUYER AGREES THAT REGARDLESS OF THE CLAIM OR OTHER FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT BY BUYER AGAINST SELLER, ITS AFFILIATES OR ITS OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS OR REPRESENTATIVES (“SELLER GROUP”) THAT NEITHER SELLER OR ANY MEMBER OF THE SELLER GROUP SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, PROMOTIONAL EXPENSES, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS ARISING OUT OF OR RELATED TO THE PRODUCTS OR THIS CONTRACT, AND BUYER HEREBY WAIVES ANY CLAIM FOR ANY SUCH EXCLUDED FORM OF DAMAGES.
B. Buyer’s cumulative and maximum recovery from all members of the Seller Group for any and all actions, claims, costs (including without limitation, costs of investigation, litigation, and court costs), damages, demands, fines, interest, judgments, liabilities, losses, penalties, proceedings, suits (including appeal), and expenses (including, without limitation, reasonable attorneys’ fees) of whatsoever kind or character (collectively, “Claims”) in any way arising from or related to the Products or to this Contract by the Buyer, its customers and coventurers (if any), its contractors and subcontractors of any tier, its and their respective affiliates and its and their respective shareholders, directors, officers, employees (including agency personnel) and representatives (“Buyer Group”) shall not exceed the lower of (i) the purchase price paid by Buyer for the Products at issue, less reasonable depreciation, or (ii) the amounts paid by Buyer under this Contract during the preceding twelve (12) month period; IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE AND WHETHER ARISING IN WHOLE OR IN PART FROM THE NEGLIGENCE, GROSS NEGLIGENCE, OR OTHER FAULT OF THE SELLER GROUP.
C. To the extent permitted by applicable law, Buyer agrees to defend, indemnify and hold harmless all members of the Seller Group for any Claims incurred by the Seller Group in excess of the limitation of liability set forth in Section 12.B.
D. BUYER ACKNOWLEDGES AND AGREES THAT THE LIABILITY LIMITATIONS SET FORTH IN THIS SECTION 0 ARE ESSENTIAL ELEMENTS OF THE CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
A. Each party (as “Indemnitor”) shall defend; shall release, discharge, and relinquish; and shall indemnify, protect and hold harmless the other party, its affiliates, and its and their customers, contractors and subcontractors (of any tier), and the shareholders, officers, directors, employees (including agency personnel), and representatives of the foregoing (“Indemnitee Group”) from and against any and all Claims that are brought by or on behalf of any person or entity, alleging bodily injury, personal injury, illness, or death of any Indemnitor or its affiliates, and its and their customers, contractors and subcontractors (of any tier), and the shareholders, officers, directors, employees (including agency personnel), and representatives of the foregoing (“Indemnitor Group”) or that result from physical damage to, loss of, or loss of use of any tangible property of the Indemnitor Group REGARDLESS OF THE NEGLIGENCE, GROSS NEGLIGENCE, FAULT OR STRICT LIABILITY OF ANY PERSON OR ENTITY, WHETHER THAT NEGLIGENCE, FAULT OR STRICT LIABILITY IS THE SOLE, JOINT OR CONCURRING CAUSE OF A CLAIM, LOSS OR EXPENSE. Separate and independent from any other insurance procurement requirements in this Agreement, each party agrees to carry insurance in support of its respective indemnity obligations under this Section in mutually-agreed amounts. Each party agrees that the mutual amount of such supporting insurance shall be the lesser of the maximum amount carried by either party at the time of the incident giving rise to the Claim. If a party does not carry or fails to maintain insurance as mutually agreed, such party will be deemed to be self-insured in an amount equal to the amount of insurance carried by the other party in compliance with this Section.
B. IN ADDITION, BUYER SHALL BE LIABLE FOR, AND SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER GROUP FROM AND AGAINST ANY AND ALL CLAIMS WHICH ARISE OUT OF, RELATE TO, OR ARE IN CONNECTION WITH BUYER’S OR ITS CUSTOMERS’ USE OF THE PRODUCTS OR THIS AGREEMENT FOR THE FOLLOWING: (I) LOSS OF OR DAMAGE TO ANY WELL OR HOLE OR ANY THIRD PARTY OIL AND GAS PRODUCTION FACILITIES; (II) RESERVOIR SEEPAGE OR POLLUTION ORIGINATING UNDERGROUND OR FROM THE PROPERTY OF BUYER OR ANY THIRD PARTY HOWSOEVER, (III) BLOW-OUT, FIRE, EXPLOSION, CRATERING OF ANY WELL OR RESERVOIR OR ANY OTHER UNCONTROLLED WELL CONDITION (INCLUDING THE COSTS TO CONTROL A WILD WELL AND THE REMOVAL OF DEBRIS); (IV) DAMAGE TO OR ESCAPE OF PRODUCT, OR SUBSTANCE FROM ANY FACILITY, INCLUDING ANY PIPELINE OR OTHER SUBSURFACE FACILITY; AND/OR (V) BODILY INJURY, PERSONAL INJURY, ILLNESS, OR DEATH, PROPERTY DAMAGE AND ANY RELATED DAMAGES TO THIRD PARTIES. IT IS THE EXPRESS INTENTION OF BOTH BUYER AND SELLER THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY BUYER TO INDEMNIFY AND PROTECT SELLER GROUP FROM THE CONSEQUENCES OF SELLER GROUP’S OWN NEGLIGENCE, GROSS NEGLIGENCE, OTHER FAULT OR STRICT LIABILITY, WHETHER THAT NEGLIGENCE, FAULT OR STRICT LIABILITY IS THE SOLE, JOINT OR CONCURRING CAUSE OF A CLAIM, LOSS OR EXPENSE.
14. CONFIDENTIALITY: Except as otherwise provided in this Contract, Buyer agrees that any and all information associated with the Products (including but not limited to Seller’s technical data) or Seller Group that is not otherwise publicly available (“Confidential Information”) that is disclosed to or received by Buyer (i) shall be treated as Seller’s confidential, proprietary, and/or trade secret information (with Seller reserving all rights to its Confidential Information); (ii) shall be held by Buyer in strict confidence, (iii) shall be used by Buyer only for purposes of this Contract, and (iv) that no Confidential Information, including without limitation the provisions of this Contract, shall be disclosed by Buyer without the prior written consent of Seller. Buyer shall safeguard Confidential Information with at least the same degree of care (which shall always be at least a reasonable amount of care) that it uses to safeguard its own confidential, proprietary, and trade secret information.
15. GENERAL PROVISIONS:
A. Notice. Notice shall be deemed effective and delivered three days after mailing if sent certified mail, return receipt requested, or when received if sent by telecopy, prepaid courier, express mail or personal delivery to the intended recipient thereof at the address shown on the first page hereof, or to such other address as either party may specify in a written notice to the other party pursuant hereto.
B. Independent Contractor. Seller, in providing the Products hereunder, is acting as an independent contractor and does not undertake by any Order or otherwise to perform any obligation of Buyer, or to assume any liability for Buyer’s business or operations.
C. Governing Law/Venue. The validity, performance, and construction of this contract shall be governed by the laws of the State of Texas (excluding its conflict of laws rules which would refer to and apply the substantive laws of another jurisdiction). Any suit or proceeding hereunder shall be brought exclusively in state or federal courts located in Harris County, Texas. Each party consents to the personal jurisdiction of the state and federal courts of said county and waives any objection that such courts are an inconvenient forum. This Contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Contract.
D. Limitations Period. Any claims or causes of action arising from or relating to the Products or this Contract must be instituted within one (1) year from the date upon which such claim or cause of action arose or was accrued.
E. Severability. If any provision of this Contract is held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of this Contract, and this Contract shall be construed as if such invalid or unenforceable provision were omitted.
F. Assignment. Buyer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Seller. Any assignment made in contravention of this Section 15.F shall be null and void for all purposes.
G. Compliance with Laws. Each party hereto agrees to comply with all federal, state, and local laws, rules, and regulations in effect in the United States of America and any other country or territory in respect of their activities contemplated by this Agreement, including without limitation the United States Foreign Corrupt Practices Act.
H. Exports and Re-exports. Buyer shall be responsible for obtaining any licenses or governmental permits for export, reexport, and import of the Products to the country of final destination or any other country where the Products may be landed or utilized. Buyer warrants it will not allow Products to be transferred at any time on either a temporary or permanent basis in any manner that would violate United States Export laws or regulations (“Export Laws”), including, but not limited to, the Export Administration Act of 1979, and the Arms Export Control Act of 1976, the Office of Foreign Assets Control (“OFAC”) Regulations, the Export Administration Regulations (“EAR”), and the International Traffic in Arms Regulations (“ITAR”) as such may be amended from time-to-time. Buyer shall further defend, indemnify and hold harmless Seller Group from and against any and all claims brought by or on behalf of any person or entity (including without limitation any governmental authority) arising out of or in connection with violations of this Article or the Export Laws by Buyer or its agents.
I. Amendment/Entire Agreement. This Contract may be amended only in a writing executed by the authorized representatives of both parties. This Contract constitutes the entire agreement between the parties relating to the sale of Products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter here for, and no representations or statements of any kind made by any representative of Seller, which are not stated herein shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in this Contract.