TERVES TERMS & CONDITIONS
All products and services, including the supply and/or sale of products, and furnishing of services (collectively referred to as “Products and Services”) are provided to the customer (hereinafter referred to as “Customer”) in accordance with the following terms and conditions set out herein. Any sales quote, sales order, invoice, or other documentation relating to the Products and Services provided to Customer, along with these terms and conditions shall, taken together, form the contract between Terves and the Customer (hereinafter referred to as “Contract”). Each shipment received by Customer from Terves shall be deemed to be only upon the terms and conditions contained herein. In the event of any conflict between any documents, the following terms and conditions shall govern.
It is hereby expressly agreed that the conditions in and about Customer’s service site, industrial facility, well, well bore, and drilling machinery have not been created by Terves and that Terves has no means to determine the hazards and dangers existing in and about said facilities and/or well to be encountered while the Customer performs any services which may cause surface and/or subsurface damage, property damage, personal injury and/or failure of the service operation. It is therefore agreed that the following terms and conditions shall apply to all products and services, as described above, that are provided to the Customer. Any additions to or modifications of these terms and conditions, or any terms and conditions inconsistent in Customer’s purchase orders inconsistent herewith, shall not bind Terves unless accepted in writing by a Company Officer of Terves, and in the event of a conflict of this Agreement, and any prepared form of purchase order or any other form of work order (see “Order” below), this Agreement shall control.
ORDERS
From time to time, at the request of the customer, Terves shall provide product and/or services to the customer as specified in the Order. The Parties are free to issue/accept Orders in any written form, including purchase orders, work orders, statements of work, emails or other written communication between the Parties, but unless the Parties have entered into a separate, written, laboratory services and sale agreement, master services agreement, supply agreement, or other contract which governs the Work, (a) each Order shall be subject to these Terms and Conditions, which shall control and govern all transactions between the Parties with respect to products and services by Terves, whether or not these Terms and Conditions are referred to in the Order; and (b) no other, additional or different terms and conditions in any written or oral communication with respect to a transaction for products and services (including the terms and conditions in any Customer request for proposal, request for quote, request for bid, purchase order, or similar document) shall vary or amend these Terms and Conditions; and (c) Orders submitted by Customer orally shall be followed by a purchase order or other written confirmation within seven (7) days from the date of the oral order, failing which Terves shall have no obligation to perform Work thereunder. In the event of a conflict between these Terms and Conditions and the terms in any Order, these Terms and Conditions shall control, unless the Order (i) makes specific reference and identification to the provision of these Terms and Conditions to be modified, (ii) explicitly states the intention of the Parties to so modify, and (ii) is executed on by an authorized officer of each Party. Such modifications shall be effective for that Order only, and no agreement to modify these Terms and Conditions with respect to any particular Order shall vary or amend those terms and conditions with respect to any other or subsequent Order. Each Order shall constitute a separate agreement between the Parties.
PAYMENT
The Customer shall pay the price in US Dollars for all Products and Services as set out in the Terves invoice (hereinafter referred to as “Invoice”) upon receipt of the order, unless other terms are agreed upon and documented prior to order shipment. If payment is not made within said agree-upon timeframe, the unpaid amount of such bill shall bear interest at the lesser of: i) two percent per month, or ii) the maximum rate allowed by law. If the account is placed in the hands of a collection agency or an attorney for collection, Customer agrees to pay all fees and costs accrued by Terves to collect on the unpaid invoice as well as attorney fees and court costs in accordance with the laws of the State of Ohio.
COSTS AND TAXES
All prices identified in the Invoice for Products and/or Services may be exclusive of applicable transportation, insurance, state and federal taxes, use and excise taxes, duties and the like depending upon the circumstances of the sales order. Customer agrees to purchase Products and Services and pay such costs, taxes, fees, and duties that may be applicable or reimburse Terves for such costs, taxes, fees, and duties that may be applicable.
SHIPMENT AND RISK OF LOSS
All products are sold F.O.B. Terves, Inc., Euclid, Ohio. Title to goods and risk of loss of goods sold to Customer are passed upon delivery to carrier or Customer. Customer shall be responsible for, and shall pay for, all shipping arrangements including for crating, handling and delivery costs. Terves will coordinate shipping at the Customer’s request; however, all costs incurred will be charged back to the Customer and the Customer will assume all risk of loss once the products leave our Euclid facility. If the Customer requests that Terves coordinates shipping, Terves will attempt to ship products on the dates specified by the Customer; provided, however, that such delivery date shall be presumed to be approximate and Terves is not responsible for any damages, losses or costs incurred as a result of such shipping or any late delivery. Any claim for shipping delay, loss, breakage or damage is the Customer’s sole responsibility and should be made to the carrier.
DESIGN MODIFICATIONS
Terves reserves the right to modify and improve the formulation, design or method of production of any of its products without incurring any obligation to install such modification or improvement on products sold, manufactured or assembled prior to or after the modification or improvement is implemented.
SERVICES
In the event Customer requests Terves to provide certain technical advisory services to assist Customer in the proper processing, assembly or implementation of any product included in the Products and Services supplied by Terves, such advice shall be based upon Terves’ experience in the area of materials science but is made without warranty, express or implied as more specifically described in the WARRANTY AND LIMITATION OF LIABILITY section set forth below. Notwithstanding the provision of any technical advisory services by a Terves representative, Customer retains complete control of the final part completion, and well activities, and complete supervision of any operations performed in or about the well and Terves expressly disclaims any liability in connection with any technical advisory services.
WARRANTY AND LIMITATION OF LIABILITY
Terves warrants that the products provided will be in substantial conformance with the proposal provided to Customer, and should material be found to be out of conformance Terves, at their discretion will repair or replace the out of conformance material, or will provide credit of like value for purchase of new Terves product. The terms of this warranty are one year from the date of shipment of said material.
WITH RESPECT TO ANY PRODUCT SUPPLIED AND/OR SOLD TO CUSTOMER, TERVES DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND QUALITY OR PERFORMANCE. TERVES HEREBY DISCLAIMS AND THE CUSTOMER HEREBY RELEASES TERVES FROM ALL LIABILITY IN CONTRACT (OTHER THAN FOR BREACH OF AN EXPRESS TERM), WARRANTY, TORT OR OTHERWISE, TO THE CUSTOMER OR ANY OTHER PERSON CLAIMING THROUGH OR UNDER THE CUSTOMER, FOR ANY DAMAGES, COSTS, EXPENSES, CLAIMS, PROCEEDINGS, OR ACTIONS, WHETHER CONSEQUENTIAL OR INCIDENTAL, DIRECT OR INDIRECT, SPECIAL OR GENERAL AND HOWEVER CAUSED (COLLECTIVELY REFERRED TO AS “CLAIMS”), AND IN NO EVENT SHALL TERVES BE LIABLE THEREFOR, EVEN THOUGH TERVES MAY HAVE BEEN ADVISED OR MAY OTHERWISE KNOW OF THE POSSIBILITY OF SUCH CLAIMS. FURTHER, UNLESS SPECIFICALLY CAUSED BY WILFULL MISCONDUCT OR GROSS NEGLIGENCE, TERVES SHALL NOT BE RESPONSIBLE FOR DAMAGE OR LOSS TO ANY RESERVOIR, ANY SUBSURFACE DAMAGE, ANY SURFACE DAMAGE, OR FOR A WELL BLOW-OUT, EVEN IF SUCH DAMAGE OR LOSS IS CAUSED BY THE NEGLIGENCE OF TERVES ALONE OR IN CONJUNCTION WITH THE NEGLIGENCE OF CUSTOMER OR ANY THIRD PARTY. IN NO EVENT SHALL TERVES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING FROM THE PRODUCTS AND SERVICES, NOR SHALL TERVES BE LIABLE FOR CUSTOMER’S ATTORNEYS FEES. IN NO EVENT SHALL TERVES BE LIABLE FOR ANY ENVIRONMENTAL DAMAGE AND CUSTOMER SHALL INDEMNIFY TERVES FOR ANY ENVIRONMENTAL LIABILITY INCURRED BY TERVES ARISING OUT OF TERVES SUPPLY AND/OR SALE OF PRODUCTS AND SERVICES TO CUSTOMER. NOTWITHSTANDING THE ABOVE, TERVES SHALL IN NO EVENT BE LIABLE FOR AN AMOUNT GREATER THAN THE AMOUNT THE CUSTOMER PAID TO TERVES UNDER THE SPECIFIC PROPOSAL FOR SUCH PRODUCTS AND SERVICES. IN NO EVENT SHALL TERVES BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHICH CUSTOMER MAY INCUR.
WITH RESPECT TO ANY PRODUCT SUPPLIED AND/OR SOLD TO CUSTOMER BY TERVES THAT IS CUSTOMIZED, ALTERED AND/OR MODIFIED BY CUSTOMER, TERVES HEREBY EXPRESSLY DISCLAIMS AND THE CUSTOMER OR ANY OTHER PERSON CLAIMING THROUGH OR UNDER THE CUSTOMER HEREBY RELEASES TERVES FROM ALL LIABILITY FOR ANY DAMAGES, COSTS, EXPENSES, CLAIMS, OR ACTIONS ARISING FROM CUSTOMER OR ANY OTHER PERSON CLAIMING THROUGH OR UNDER THE CUSTOMER’S USE OF SUCH CUSTOMIZED, ALTERED, AND/OR MODIFIED PRODUCT.
INDEMNIFICATION
CUSTOMER AGREES TO INDEMNIFY TERVES FROM ANY AND ALL DAMAGE TO, OR LOSS OR DESTRUCTION OF CUSTOMER’S OR ITS CONTRACTOR’S EQUIPMENT, DRILL PIPE, IN HOLE EQUIPMENT, WELL BORE, PROPERTY RIGHT IN OR TO OIL, GAS, OR OTHER MINERAL SUBSTANCES, RESERVOIR, STRATA OR LEASEHOLD INTEREST, AND ANY CONTAMINATION, AGGRAVATION, TRANSPORT, OR THE EXISTENCE OF POLLUTION, HAZARDOUS MATERIALS, CHEMICALS, HYDRO CARBONS OR SIMILAR SUBSTANCES REGULATED BY ANY GOVERNMENTAL AUTHORITY ARISING FROM TERVES’ SUPPLY AND/OR SALE OF ANY PRODUCTS AND SERVICES HEREUNDER. IN ADDITION, EACH PARTY, ON BEHALF OF ITSELF, ITS SUCCESSORS AND ASSIGNS, AGREES TO THE EXTENT OF ITS RESPONSIBILITY TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY AGAINST ANY AND ALL LIABILITY TO OR CLAIMS OF THIRD PARTIES (TOGETHER WITH ALL REASONABLE LEGAL AND INVESTIGATIVE COSTS RELATING THERETO) FOR
PHYSICAL INJURY TO OR DEATH OF ANY PERSON(S) AND FOR LOSS OF OR DAMAGE TO ANY TANGIBLE PROPERTY OCCURRING IN CONNECTION WITH THE PRODUCTS AND SERVICES OR THE PERFORMANCE OF OBLIGATIONS OR THE EXERCISE OF RIGHTS HEREUNDER, TO THE EXTENT SUCH INJURY OR DEATH OR LOSS OF OR DAMAGE TO PROPERTY RESULTS FROM THE NEGLIGENT ACTS OF THE INDEMNIFYING PARTY, ITS AGENTS, EMPLOYEES OR CONTRACTORS.
If any Party entitled to indemnification hereunder (hereinafter referred to as “Indemnified Party”) intends to seek indemnification under this Section from any other party (hereinafter referred to as “Indemnifying Party”) with respect to any action or claim, the Indemnified Party shall promptly give the Indemnifying Party written notice of such claim or action. The Indemnifying Party shall have no liability under this Section for any claim or action for which such notice is not provided, except to the extent the failure to give such notice does not actually materially prejudice the Indemnifying Party. The Indemnifying Party shall have the right to assume the defense of any such claim or action with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided, however, that if the defendants in any such action include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Party. Should any Indemnified Party be entitled to indemnification under this Section as a result of a claim or action by a third party, and should the Indemnifying Party fail to assume the defense of such claim or action, the Indemnified Party may, at the expense of the Indemnifying Party, contest (or, with the prior consent, not to be unreasonably withheld or delayed, of the Indemnifying Party, settle) such claim or action. Except to the extent expressly provided herein, no Indemnified Party shall settle any claim or action with respect to which it has sought or intends to seek indemnification pursuant to this Section without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
INTELLECTUAL PROPERTY
Terves Products and Services that are supplied and/or sold to Customer remain the proprietary property of Terves. Terves’ proprietary Products and Services shall not be reverse-engineered, copied or duplicated by Customer. Customer agrees to hold Terves harmless from patent infringement claims resulting from Terves’ compliance with designs and/or specifications furnished by Customer. The Customer acknowledges and agrees that Terves may own intellectual property rights in and to the products, including patents and trademarks used in connection therewith, and that nothing in these terms shall be deemed, implied or construed to grant any intellectual property rights whatsoever in or to the products, services, or otherwise including any patents or trademarks used in connection therewith. Without restricting the generality of the foregoing, all right, title and interest in and to the products is and shall remain the exclusive property of Terves and no title, interest, license or any right respecting the Products and Services is or has been granted to the Customer by implication or otherwise. Terves agrees to assume the defense of any suit for infringement of any U.S.A. patents brought against Customer to the extent such suit claims infringement of Terves’ patented or patent pending products provided that Customer notifies Terves within ten (10) days of service of a claim thereon and Terves is given complete control of the defense of such suit, including the right to defend, settle and make changes in the product for the purpose of
avoiding infringement. If Terves and Customer or their respective employees jointly develop any Intellectual Property which is not an enhancement, improvement or derivation of either Party’s Intellectual Property (“Joint IP”), the Joint IP shall be owned by Terves.
EXPORT CONTROL
Customer will be subject to and shall comply with all applicable laws, rules and regulations regarding the import, export, re-export, purchase, sale, distribution, marketing, promotion, service, and representation of Terves’ Products and Services and any other activities applicable to the Customer under this agreement, including but not limited to all executive orders, export and re-export obligations and restrictions, U.S. export and re-export controls and economic sanctions regulations, statutory and regulatory requirements under the Arms Export Control Act (22 U.S.C. 1778), the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 et seq.), the Export Administration Act (EAA) of 1979 (P.L. 96-72), the Export Administration Regulations (15 C.F.R. parts 730 et seq.) and associated executive orders, the laws implemented and administered by the Office of Foreign Assets Control (“OFAC”), U.S. Department of Treasury, anti-boycott regulations administered by the U.S. Department of Commerce and the U.S. Department of the Treasury, and the equivalent laws in any other jurisdiction in which Company and Purchaser’s Group operate, as such now exist or as such may subsequently be enacted or amended (collectively, the “Export Control Laws”), and Customer, its parent company, subsidiaries, affiliates, owners, officers, directors, employees and representatives (“Customer’s Group”) will do nothing to cause Terves to violate such Export Control Laws. In that regard, Customer acknowledges the disclosure of any documents, data, commodities, software, technology, and/or other information (in tangible or intangible form) may be subject to export controls under Export Control Laws. Customer warrants that Customer’s Group will adhere to and comply with the terms, conditions, required procedures and documentation of any export license available or issued for delivery of Terves’ Products and Services. Customer acknowledges that Terves may in its absolute discretion refuse to provide Products and Services to Customer should Terves believe that Customer’s Group may violate or may have violated the Export Control Laws or the provision of any license, or should any such license be suspended or revoked.
In addition, any Order or will automatically terminate in the event of a change in (a) the structure of ownership, control or management of Customer or (b) any Export Control Laws which causes, or which if in effect on the date of execution of any Order would have caused, (i) either party to be in violation of Export Control Laws or (ii) this transaction to be prohibited under Export Control Laws. In the event of such termination, Terves will have no liability to Customer, and the rights and obligations of the parties will otherwise be terminated as if Customer had cancelled any Order. Unless otherwise permitted under Export Control Laws, Terves will not be required to provide any deliverable to Customer. In the event of any violation by, or liability to, Terves of Export Control Laws as a result from actions of Customer, Customer shall indemnify and hold Terves harmless with respect to each incident of illegality or liability.
FORCE MAJEURE
Terves shall not be responsible for non-performance or delays in performance occasioned by any causes beyond Terves’ reasonable control, including, but not limited to, labor difficulties, delays of vendors or carriers, fires, flood, governmental actions, laws, regulations or requests prohibiting or impeding Terves from performing under any Order, acts of war, riot, terrorism, acts of God and material shortages or other occurrences beyond the
reasonable control of Terves. Any delays so occasioned shall affect a corresponding extension of Terves’ performance dates which are, in any event, understood to be approximate. In no event shall Customer be entitled to incidental or consequential damage for late performance or failure to perform. In the event of such delay, the time for performance or delivery shall be extended by a time reasonably necessary to overcome the effect of the delay.
GENERAL
- Catalogues, product brochures, and similar pamphlets of Terves are issued for general information purposes only and shall not be deemed to modify the provisions hereof.
- The agreement formed hereby and the language herein shall be construed and enforced in accordance with the laws in force in the State of Ohio. Terves and Customer submit to the exclusive jurisdiction of the state and federal courts of Cuyahoga County, Ohio, and waive any right whereby they might be entitled to bring an action under this Contract in another county, parish, state or country.
- Terves shall have the right to unilaterally alter or modify these general terms and conditions from time to time without notice.
- These terms and conditions shall not be assigned without prior written consent of Terves.
- Customer’s orders are a final sale. Orders are not subject to cancellation by Customer for any reason.
- To help pay for cost of inspection, restocking invoicing, credit memos, etc., there will be a minimum charge of $50.00 per return to stock for stock shapes and products. Items returned before 90 days of the date on the Invoice will be charged 15%, 91-180 days will be charged 50%, and items older than 180+ days and/or custom built, or machined to print to meet Customer specifications may not be returned for credit. Any material deemed unsellable due to lack and protection and environmental exposure damage may not be returned for credit.
- Any action of any kind against Terves by Customer must be commenced within one (1) year from the date such right, claim, demand or cause of action shall first have accrued.
- Customer shall only use the Products provided by Terves in the country or assigned geographic area which the Products are designated to be shipped to, or used in, as set forth in the purchase order. Products shall not be used or otherwise transferred or diverted for use in countries sanctioned by the U.S. government. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized Customer, either in their original form or after being incorporated into other items, without first obtaining written authorization from Terves.
- In accepting Products and Services from Terves, Customer shall be deemed to have accepted these Terms and Conditions. Customer acknowledges Terves may periodically revise and post updates to these Terms and Conditions, and that any future Orders will be subject to the most recently posted version of the Terms and Conditions.
