PUFFER-SWEIVEN LP

 

1. Definitions.

 

1. “Affiliate” shall mean another entity that controls, is controlled by or is under common control with the Customer.  In this context, control means the ownership of more than 50% of the voting control of such entity or the right to control the management of such entity by contract.

 

1. Buyer Equipment” means the products, equipment and material that are provided by Buyer and upon which Seller provides any Services.

 

1. “Change Order” or “CO” means one or more documents specifying the changes to a Statement of Work as agreed upon by the parties.  Each Change Order must be mutually agreed upon and executed by the parties. 

 

1. “Goods” means all goods, products, equipment, and materials sold by Seller to Buyer.

 

1. “Intellectual Property" means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing: copyrights  (including derivative works, as defined by the United States Copyright Act, thereof), trademarks, trade names, trade secrets, know-how, patents, any other intellectual property and proprietary rights, of every kind and nature throughout the universe and however designated, and including all registrations, applications, renewals and extensions thereof.

 

1. “Services” means all services performed or provided by Seller for Buyer. 

 

1. “Statement of Work” or “SOW” means one or more documents specifying Services and/or Goods to be provided by Seller under this Agreement and setting forth the respective obligations of Seller and Buyer, which may include a performance schedule and pricing and payment terms.  Each Statement of Work must be mutually agreed upon and executed by the parties. 

 

2. Application.  These Terms and Conditions (the “Agreement”) are the only terms and conditions applicable to the sale of the Goods and Services to the Buyer.  ANY REPRESENTATIONS, PROMISES, WARRANTIES, OR STATEMENTS BY SELLER'S AGENT OR EMPLOYEE THAT DIFFER IN ANY WAY FROM THE TERMS OF THIS AGREEMENT SHALL BE GIVEN NO FORCE OR EFFECT.  The person accepting or entering into this Agreement on behalf of Buyer hereby warrants and represents that such person has actual authority to do so and to bind Buyer to the terms hereof and that all corporate (or equivalent) action required to accept such Agreement by Buyer has occurred.  Any additional or different terms or conditions set forth in any communications, including without limitation a telephone order, a request for quotation, or purchase order form, from Buyer are objected to by Seller and shall not be effective or binding unless expressly assented to in writing by an officer of Seller.  All shipments are made pursuant to this Agreement.  No other terms or additions are acceptable.  This Agreement is intended as a final and complete expression of the agreement between Seller and Buyer. A sales confirmation or similar form issued by Seller pursuant to a Buyer’s purchase order constitutes an expression of acceptance of such purchase order, but such expression of acceptance is expressly conditioned upon Buyer’s assent to this Agreement.

 

3. Goods and Services.

 

1. Affiliates. Affiliates of the parties may adopt this Agreement by entering into orders with the other party or its Affiliates, which will be deemed to incorporate, and to be performed under, the terms and conditions of this Agreement. In such case, an Affiliate of Buyer which enters into the order will be deemed Buyer and an Affiliate of Seller which enters into the order will be deemed Seller.

 

1. Prices and Quotations. All prices are FCA Seller's warehouse in Stafford, Texas or such other of Seller’s locations as Seller may choose, unless otherwise specified.  Except as otherwise provided therein, Seller 's prices for the Goods shall remain in effect for thirty (30) days from the date of Seller's quotation.

 

1. Risk of Loss. Buyer shall bear the risk of loss for damage to or destruction of the Goods from the earlier of the time that Seller delivers such Goods to the carrier or to Buyer or Buyer's agent.  Any claims for loss or damage after risk of loss has passed to Buyer shall be filed with the carrier.  Buyer shall give written notice to Seller of any claim for shortage, error in Goods shipped or error in charges within thirty (30) days after receipt of Goods or such claim shall be deemed waived.

 

1. Returns. Buyer may request to return Goods by contacting its account salesperson to request a return authorization number.  No Goods will be accepted for return without a valid return authorization number clearly noted on the outside of the shipment.  Any return shipments must be made freight prepaid unless Seller has expressly authorized Buyer in writing to ship such Goods to Seller at Seller's expense.  Any returns of Goods authorized by Seller are subject to Seller's standard restocking charges as such are then effective.  Seller 's current minimum restocking charges are the greater of 20% of the invoiced price or $50 per item.  Special orders or non-stock items are subject to higher restocking charges.

 

1. Cancellation. Prior to acceptance of the Goods, Buyer may terminate its order for any or all of the Goods covered by this Agreement, provided that (a) Seller is given reasonable advance written notice of such termination and (b) Seller is paid termination charges which shall include all costs and expenses already incurred or commitments made by Seller in connection with the processing, purchasing, handling and fabrication of the Goods, and a reasonable profit thereon plus any losses or damages resulting from such cancellation or termination.  Seller's determination of such termination charges shall be conclusive.

 

1. Seller shall provide the Services as set forth in each Statement of Work and Change Order or as otherwise agreed by the parties from time to time.  Each SOW and CO is hereby incorporated into this Agreement by reference.  Seller shall provide the Goods as agreed upon by the parties from time to time.

 

1. If Seller takes possession of any Buyer Equipment, Buyer shall bear the risk of loss or damage to or destruction of the Buyer Equipment from the earlier of the time that Seller delivers such Buyer Equipment to the carrier or to Buyer or Buyer's agent.  Any claims for loss or damage after risk of loss has passed to Buyer shall be filed with the carrier.  Buyer shall give written notice to Seller of any claim for shortages or errors in Buyer Equipment shipped within thirty (30) days after receipt of Buyer Equipment or such claim shall be deemed waived.

 

1. Quoted completion and delivery dates are approximate estimates determined at the time of quotation and are subject to revision at any time.  All completion dates are approximate and are based upon prompt receipt by Seller of all necessary information from Buyer to properly process the order.  Completion dates are subject to changes caused by additions to or modifications of the original order agreed to by both Seller and Buyer.  Under no circumstances shall Seller have any liability whatsoever for loss of use or for any indirect, special, incidental, consequential or punitive damages, including lost revenue or lost profits, as a result of delayed completion of Services or delivery of Goods.  Unless otherwise agreed in writing, Seller shall have the option of partial or complete shipment of the Goods or return of the Buyer Equipment.

 

4. Limited Warranty.

 

1. AS TO ALL GOODS AND SERVICES, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER MATTER.  The warranties made in this section are in lieu of any other warranty, express or implied, and are expressly subject to the terms of this Agreement, including any and all limitations of liability.  The warranties made in this section are the only warranties made by Seller and can be amended only by a written instrument signed by an officer of Seller.

 

1. “Resale Goods” shall mean any portion of the Goods purchased by Seller from a third party for resale.  If the Resale Goods are subject to the manufacturer's or other third party’s warranties, Seller hereby assigns to Buyer all of Seller's rights and remedies under such warranties to the extent that such rights and remedies are assignable. 

 

2. “Puffer Goods” shall mean any portion of the Goods manufactured or fabricated by Seller.  Subject to the terms of this Agreement, Seller warrants that all Puffer Goods will be free from defects in materials or workmanship under normal use and service until the expiration of twelve (12) months from the date of shipment by Seller.  Puffer Goods are prepared solely as a convenience to Buyer according to instructions and specifications provided by Buyer.

 

3. “Consumables” shall mean that portion of the Goods which is depleted or expected to rapidly deteriorate in ordinary use of the Goods including, without limitation, glass parts and electrodes, membranes, liquid junctions, electrolytes and reagents, o-rings, plastic tubing, etc.  Subject to the terms of this Agreement, Consumables which do not constitute part of Resale Goods are warranted by Seller to be free from defects in material and workmanship under normal use and service for a period of ninety (90) days from the date of shipment by Seller.

 

4. “UPO Goods” shall mean unused, previously owned goods which are not covered by a manufacturer's warranty on the date of shipment by Seller.  Subject to the terms of this Agreement, Seller warrants that UPO Goods shall be free from defects in material and workmanship under normal use and service for a period of twelve (12) months from the date of shipment by Seller.

 

5. “Used Goods” shall mean previously sold, used goods which may or may not have been refurbished, repaired, modified, reconfigured, or cleaned by Seller or a third party.  Used Goods shall include, but not be limited to, Goods such as that sold through the ENCORE program.  If any portion of the Used Goods is subject to a third-party warranty, Seller hereby assigns to Buyer all of Seller's rights and remedies under such warranty to the extent that such rights and remedies are assignable.  If any portion of the Used Goods is not subject to any other warranty as of the date of shipment by Seller, and subject to the terms of this Agreement, Seller warrants that such portion of the Used Goods shall be free from defects in material and workmanship under normal use and service for a period of six (6) months from the date of shipment by Seller.

 

6. Subject to the terms of this Agreement, Seller warrants that any portion of the Goods consisting of Software will execute the programming instructions provided by Seller for a period of ninety (90) days from the date of shipment.  The foregoing warranty shall not apply to any such software which is covered by a third-party warranty.  If any such portion of the Goods consisting of Software is subject to the manufacturer's or other third-party warranties, Seller hereby assigns to Buyer all of Seller's rights and remedies under such warranties to the extent that such rights and remedies are assignable.

 

7. Subject to the terms of this Agreement, Seller guaranties the workmanship in all non-warranty service, including, without limitation, repair and maintenance service, performed by Seller for a period of twelve (12) months from the date of the service in the case of service related to mechanical equipment and for a period of ninety (90) days from the date of the service in the case of service related to electronic equipment.

 

8. Subject to the terms of this Agreement and unless otherwise expressly provided herein, Seller warrants title to all Goods sold under this Agreement. 

 

1. Buyer must notify Seller in writing of any warranty defects within thirty (30) days after discovery thereof.  Failure by Buyer to give such written notice within the applicable time period shall be deemed an absolute and unconditional waiver of Buyer's claim for such defects.  If timely written notice of such defects is given to Seller and Seller concludes that such defects are covered by a warranty made by Seller in this Agreement, Seller shall, at its option and as Buyer's sole and exclusive remedy hereunder, promptly correct any errors that are found by Seller to exist in the Software, or repair or replace F.O.B. point of manufacture, that portion of the Goods found by Seller to be defective.  Buyer agrees that Seller shall have no liability for warranty defects alleged to exist in Resale Goods; however, Seller agrees to make a reasonable commercial effort, if requested to do so by Buyer, to arrange for procurement and shipping of replacement Resale Goods, at Buyer's expense.  Goods repaired and parts replaced by Seller during the warranty period shall be subject to the warranties made by Seller in this Agreement for the remainder of the original warranty period.

 

10. The warranties made by Seller in this Agreement do not apply to replacements or repairs necessitated by inadequate preventative maintenance, or by normal wear or usage, or by fault of Buyer, or by unsuitable power sources or by attack or deterioration under unsuitable environmental conditions, or by natural disaster, sabotage, abuse, accident, alteration, misuse, improper installation, modification, repair, storage or handling, or any other cause not the fault of Seller.  The warranties made by Seller in this Agreement do not apply to (i) any Goods which have been modified or subjected to unauthorized repair; or (ii) any item which is a component part of the Goods where such item is furnished by Buyer.

 

11. To the extent that Seller has relied upon any specifications, information, representation of operating conditions or any other data supplied in writing by Buyer to Seller in the selection or design of the Goods or otherwise in connection with this Agreement or the preparation of Seller’s quotation, and in the event that the actual operating conditions or other conditions differ from those supplied by Buyer and relied upon by Seller, ANY WARRANTIES OR OTHER TERMS AND CONDITIONS CONTAINED HEREIN WHICH ARE AFFECTED BY SUCH CONDITIONS SHALL BE NULL AND VOID.

 

• Seller's obligation to repair or replace defective Goods constitutes agreed and liquidated damages and the sole remedy for any breach of warranty by Seller.  Seller shall have the right to inspect any Goods claimed to be defective and shall have the right to determine the cause of such claimed defect.  All Goods replaced or repaired by Seller under its warranty shall be replaced or repaired F.O.B.  Seller's warehouse, Stafford, Texas, or such other location as Seller may designate.

 

13. For purposes of this Agreement, "date of shipment by Seller" shall mean the earlier of the date that the Goods are delivered for shipment or the date of delivery to Buyer if Buyer (or Buyer's agent) picks up or otherwise takes delivery of the Goods without shipment by Seller.

 
 

5. Limitation of Liability. 

 
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UNDER NO CIRCUMSTANCES, WHETHER BASED IN CONTRACT, TORT, STATUTE, WARRANTY, NEGLIGENCE OR OTHERWISE, SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF DATA, ARISING OUT OF THIS AGREEMENT AND/OR THE PURCHASE OR ACQUISITION OF ANY GOODS OR SERVICES FROM OR THROUGH SELLER, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE AGGREGATE LIABILITY OF SELLER UNDER THIS AGREEMENT AND/OR WITH RESPECT TO ANY GOODS OR SERVICES PURCHASED OR ACQUIRED FROM OR THROUGH SELLER, WHETHER BASED IN CONTRACT, TORT, STATUTE, WARRANTY, NEGLIGENCE OR OTHERWISE, IS LIMITED TO, AND SHALL NOT EXCEED, THE PURCHASE PRICE PAID TO SELLER FOR SUCH GOODS OR SERVICES GIVING RISE TO SUCH LIABILITY.  THIS SECTION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT.
 

6. Software And Intellectual Property.

 
Notwithstanding anything herein to the contrary, any third party software (including firmware), whether open source, proprietary or otherwise (collectively, “Software”), that is embedded or included with any Goods or otherwise provided by Seller is not being sold by Seller hereunder; instead, all such Software shall be separately licensed by Buyer from the third party provider of such software and/or its licensors and is subject to all of the license terms and restrictions provided by or on behalf of such party.  No Software is being licensed from Seller hereunder, and Buyer is solely responsible for obtaining and complying with any applicable third-party license terms and restrictions.  Any and all materials, work product, writings, designs, formulations, drawings, ideas and/or other matters created by Seller and/or its employees, agents or contractors (“Seller Work Product”) shall be the exclusive property of Seller, and all rights, title and interest to any Intellectual Property therein shall belong exclusively to Seller from the time of their creation.  Buyer and Seller agree that all rights, title and interest, including trademarks, patent rights, copyright interests and other forms of Intellectual Property, in and to the Seller Work Product, Seller’s business methods, Seller’s Services and all related intellectual property of Seller are and shall remain the exclusive property of Seller.  No Intellectual Property of Seller is transferred hereunder.
 

7. Payment.

 

1. Rates. In consideration for performing the Services described in each Statement of Work, Buyer shall pay Seller the fees set forth in such Statement of Work.  If no fees are stated or no SOW is executed, the Services will be provided on a time and materials basis at Seller's current rates at the time the Services are performed.  Buyer shall also reimburse Seller for the reasonable actual travel and living expenses of its personnel engaged in the performance of Services hereunder at locations other than Seller facilities, together with other reasonable out-of-pocket expenses incurred by Seller in performing the Services hereunder.  Buyer shall pay the Seller for Goods according to pricing as agreed by the parties.

 

1. Payment.  Subject to the approval of Seller’s credit department, and unless otherwise agreed in writing, the payments called for in Section 6.1 shall be payable upon receipt by the Buyer of the related invoice.  Any amounts not paid within thirty (30) days shall accrue interest at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is lower.  All fees quoted and payments made hereunder shall be in U.S. Dollars. The amount of any invoice shall be deemed to be accurate unless Seller receives written notification from Buyer disputing the amount or validity of any such invoice before the payment due date and before payment has been made.  Any such notification shall be sent to Seller at 4230 Greenbriar Drive, Stafford, Texas 77477, Attn.: Accounts Receivable.  Any such notice shall include the invoice number and a description of the alleged error.  Seller shall have the right, among all other available legal remedies, to terminate this Agreement and/or to suspend further deliveries under this or other agreements with Buyer if Buyer fails to make any payments to Seller when due.

 

1. Taxes.  Buyer shall be responsible for all taxes, including sales taxes, use taxes, property taxes and similar taxes and charges of any kind imposed by any federal, state or local governmental entity for Goods and Services provided under this Agreement, excluding only taxes based solely upon Seller's net income.  When Seller has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Buyer unless Buyer provides Seller with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

1. Shipping Charges.  Orders may be shipped from Seller via ground, second day air or next business day delivery, as appropriate.  Shipments managed by Seller will use Seller’s preferred shipping carrier.  Buyer shall promptly pay all shipping and handling charges.

 

8. Non-Solicitation.

 
In consideration of the Services to be provided by Seller for Buyer and the fees to be paid by Buyer to Seller, Buyer shall not engage or hire, seek to engage or hire or in any way participate in an attempt to engage or hire any employee of Seller who performs any services for Buyer on behalf of Seller (each, a “Worker”), whether on Buyer's own behalf or on behalf of another, and Buyer shall not in any other manner attempt to directly or indirectly influence, induce or encourage any such Worker to terminate his or her employment relationship with Seller. The restrictions in the preceding sentence shall remain in effect from the time that such Worker first performs services for Buyer on behalf of Seller until the date that is one year after the date on which such Worker last performed services for Buyer on behalf of Seller.
 

9. Confidential Information.

 
From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information (collectively, “Confidential Information”). Confidential Information shall not include information that: (a) is or becomes in the public domain through no fault of the receiving party; (b) is known to the receiving party at the time of disclosure; (c) is rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information.  Nothing herein shall prevent disclosure as required by applicable law or by any governmental authority.
 
The receiving party shall not disclose any such Confidential Information to any person or entity, except to the receiving party’s and its Affiliates’ employees, contractors, suppliers and subcontractors who have a need to know the Confidential Information for the receiving party to perform its obligations hereunder. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies (other than archived or back-up copies) and certify in writing to the disclosing party that such Confidential Information has been destroyed.
 

10. Term And Termination.

 

1. Term.  The term of this Agreement shall commence on the Effective Date and shall continue in force until terminated.  The termination of this Agreement shall immediately terminate any and all Statements of Work and/or Change Orders.

 

1. Termination. 

 

1. For Breach. If either party materially breaches any term or condition of this Agreement and fails to cure that breach within thirty (30) days after receiving written notice of the breach, the non-breaching party may terminate this Agreement on written notice at any time following the end of such thirty (30) day period.

 

2. For Insolvency. Either party may terminate this Agreement upon written notice in the event the other party becomes insolvent (i.e., becomes unable to pay its debts in the ordinary course of business as they come due) or makes a general assignment for the benefit of creditors.

 

3. For Convenience.  Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice.

 

1. Effect of Termination.  Upon the termination of this Agreement for any reason, Buyer shall immediately pay to Seller all amounts due and outstanding as of the date of such termination or expiration.  The following sections shall survive the termination or expiration of this Agreement: 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10.

 

11. Miscellaneous.

 

1. Governing Law; Venue.  Texas law will govern this Agreement and any dealings between the parties, except for the body of law relating to conflicts of law.  The exclusive venue for any action relating to this Agreement and/or any other dealings between the parties shall be the state and/or federal courts of Harris County, Texas.  Each party hereby submits to the personal jurisdiction of such courts and waives any claim that such courts are an inconvenient forum.  Each party will comply with all requirements of applicable law.

 

1. Waiver and Amendment.  Except as expressly set forth in this Agreement, no modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party to be charged.  No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.

 

1. Assignment.  Buyer may not assign any of its rights or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, without the prior express written consent of Seller.  Seller may assign this Agreement and any SOW or CO in connection with a sale of more than fifty percent (50%) of its outstanding equity or a sale of all or substantially all of its assets.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.  Any purported assignment in violation of this section will be void.  Seller may exercise its rights and perform its obligations under this Agreement through subcontractors, contractors and contracted third parties.

 

1. Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.

 

1. Notices.  All notices, demands or consents required or permitted under this Agreement shall be in writing.  Notice shall be considered delivered and effective (a) when personally delivered; (b) one (1) day after posting when sent by private overnight carrier (e.g., DHL, Federal Express, etc.); or (c) five (5) days after posting when sent by certified United States mail.  Notice shall be sent to the parties at the addresses set forth on the first page of this Agreement or at such other address as shall be given by either party to the other in writing.

 

1. Force Majeure.  The provision of Goods and/or Services hereunder may be suspended, delayed or canceled by Seller, without liability to Buyer or any other person, in the event of:  Act of God, war, riot, fire, explosion, accident, flood, storm, natural disaster, epidemic, pandemic, hurricane, tornado, sabotage, equipment or computer failure, acts, omissions or failures by Seller's suppliers or other third parties, lack of or delays in obtaining adequate fuel, power, raw materials, supplies, services, components, labor, containers, transportation or manufacturing, compliance with governmental requests, laws, regulations, orders, rules or actions, breakage or failure of machinery or apparatus or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of Seller that makes impracticable the provision of Goods and/or Services.  Goods and/or Services suspended or not provided by reason of this section shall, at Seller's option, either be canceled or the time for performance shall be extended for a period equal to the period of the delay, without liability, but this Agreement shall otherwise remain unaffected.

 

1. No Agency.  The parties are independent contractors.  Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose, and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. 

 

1. Complete Understanding.  This Agreement, including any and each SOW and CO, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements and communications with respect to the subject matter hereof.  Any different, inconsistent or additional terms and conditions in any purchase order or other document provided by Buyer shall not be given any effect, and all such terms and conditions are hereby rejected by Seller.  In the event of any conflict, the body of this Agreement shall control.