DEFINITIONS: (A) Sniper: Sniper, its parent, subsidiary, affiliated companies, their officers, directors, employees and agents, individually and collectively. (B) Equipment: Drilling equipment, rental tools, other equipment, parts, materials, supplies and/or merchandise rented or sold by Sniper or provided in connection with Sniper products and services. (C) Service(s): All employees furnished by Sniper, including equipment, tools, trucks or other merchandise necessary to perform any such employee's job. (D) Customer: Party ordering or on whose behalf Equipment and/or Services are ordered and received from or furnished, rented or sold by Sniper. (E) Claims: Any liability, loss, claim, demand, cause of action, proceeding, damage and penalty, including attorney's fees, costs and expenses. (F) Quotation: Current price list of equipment provided to customer by Sniper.
TERMS AND CONDITIONS
(A) General: The Terms and Conditions herein and associated quotation, which are incorporated herein by reference for all purposes, constitute the entire contract ("Contract") between the parties and may not be amended except in writing by Sniper 's authorized representative. Equipment or Services furnished to Customer will be only on these Terms and Conditions, notwithstanding different or additional terms and conditions contained on any of Customer's forms, which are hereby objected to and which will not be binding on Sniper. The failure of either party to enforce any provision hereof will not constitute a waiver or preclude subsequent enforcement thereof. No partial invalidity of this Contract will affect the remainder. The Terms and Conditions shall be construed in accordance with the laws of the State of Texas or if offshore, in accordance with General Maritime Law of the United States, without giving effect to respective conflicts of laws principles. (B) Credit: Customer must establish and maintain credit satisfactory to Sniper. Sniper reserves the right to require Customer to furnish security for performance of Customer's obligations. If credit terms are not met, in addition to its other legal rights, Sniper may (i) defer or cancel further shipments of Equipment or personnel, and (ii) charge Customer interest at the maximum rate permitted by applicable law on the unpaid balance. Customer will pay all costs, including attorney's fees and court costs, incurred in connection with the collection of past due amounts. (C) Taxes: Customer shall be responsible for all customs fees, duties, and foreign, federal, state or local taxes (including, sales, use, excise or similar taxes and foreign withholding taxes). (D) Transportation: For Equipment sold; the Customer will arrange shipment and pay all crating, handling and shipping costs. For Equipment rented or sold where Customer does not timely furnish shipping instructions or requests that Sniper arrange shipment, such transportation shall be in a commercially reasonable manner at Customer's risk and invoiced to Customer at cost, plus 10%, or at the prevailing mileage rate for any vehicles used by personnel. (E) CONSEQUENTIAL DAMAGES: Sniper WILL NOT BE RESPONSIBLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHICH SHALL INCLUDE BUT NOT BE LIMITED TO, LOSS OF PROFITS, USE OR BUSINESS OPPORTUNITY, DAMAGES FOR FAILURE TO MEET DEADLINES, WELL CONTROL EXPENSES, SUBSURFACE DAMAGE, LOSS OF HOLE, REDRILLING EXPENSES, RESERVOIR OR FORMATION DAMAGE, POLLUTION DAMAGE AND/OR WRECK OR DEBRIS REMOVAL EXPENSE ("CONSEQUENTIAL DAMAGES"). (F) Force Majeure: Sniper will not be liable for any damages, including special and Consequential Damages, caused by events of force majeure or any other occurrences beyond Sniper’s reasonable control. In such event, the time for performance will be extended automatically for such reasonable time as is necessary to permit performance hereof. (G) DISCLAIMER OF WARRANTIES/SERVICES AND TECHNICAL INFORMATION: ANY ASSISTANCE IN EQUIPMENT INSTALLATION OR TECHNICAL OR ENGINEERING INFORMATION CONCERNING EQUIPMENT OR SERVICES PROVIDED BY Sniper WILL BE ADVISORY ONLY, AT CUSTOMER'S SOLE COST AND ON AN "AS IS" BASIS. NO WARRANTY IS GIVEN WITH RESPECT TO SUCH SERVICES OR INFORMATION AND SNIPER WILL NOT BE LIABLE FOR ANY CLAIMS ARISING FROM ITS FURNISHING OR CUSTOMER'S USE OF SUCH ASSISTANCE OR INFORMATION. (H) Insurance: The parties agree that the indemnities provided by Customer herein shall be supported either by available insurance or voluntarily self-insured, in whole or part. Customer will, at its expense, maintain adequate insurance to fully protect any Equipment or personnel supplied hereunder and will supply to Sniper, upon request, satisfactory evidence of sufficient insurance coverage. (I) Prices: All prices, rates and charges are subject to change without notice. (J) Acceptance: The terms, conditions, and prices set forth in the credit application, quotation, service, sheet, delivery sheet, and Sniper’s relevant Drilling Motor Run Report (hereinafter "Tickets"), for any Equipment and/or Services ordered by Customer as of the date of delivery, irrespective of whether the Customer's authorized representative signs such Tickets, are incorporated herein by reference in their entirety. Customer acknowledges and represents that it has reviewed and accepts these terms and conditions without objections. (K) Assignment: Customer may not assign any rights or obligations hereunder, without Sniper’s written consent. (L) Amendment of Indemnities to Conform to Law: The indemnities provided by Customer herein shall be limited to the extent necessary for compliance with applicable state and federal laws, and to the extent any state or federal laws are at variance with the indemnities provided herein, such indemnities shall be deemed to be amended so as to comply with such state and federal laws. (M) Termination/Survival: No termination shall relieve Customer of any liability incurred and Customer's obligations shall survive such termination, including all indemnities contained herein which are made expressly for the benefit of Sniper. Upon termination, Customer shall immediately return to Sniper all rental Equipment.
SALE TERMS
1. Priority of Purchase-Money Security Interests: Customer grants Sniper a purchase money security interest in all Equipment Customer purchases from Sniper on credit, and Customer acknowledges and agrees that Sniper shall have full right and authority to perfect its security interest in such Equipment, including recording one or more financing statements and any other instruments pertaining to such security interest
2. LIMITED LIABILITY/DISCLAIMER: (A) Provided that Customer subjects Equipment only to operating conditions specified by Customer when the order is placed, if any, and operates it in accordance with Sniper’s written operating instructions, if any, Sniper warrants Equipment sold pursuant hereto to be free of defects in material and workmanship for a period of 1 year after the date Equipment is ready for shipment. The above warranty does not apply to: (i) used Equipment or Equipment that has been repaired or worked over; (ii) Equipment that has been modified or subjected to improper handling, storage, installation, operation or maintenance by Customer, including use of unauthorized replacement parts; (iii) component parts not manufactured by Sniper, whether purchased by Sniper or furnished by Customer, such parts being subject to any applicable manufacturer's warranty; (iv) parts requiring replacement because of normal wear and tear; (v) design on those jobs where Sniper prepared drawings, lists or bills of material from designs furnished by others; and (vi) models or samples furnished to Customer as illustrations only of general properties of equipment. This warranty will not apply unless Customer gives Sniper written notice within 10 days after discovering the defect and, if requested by Sniper, returns the defective part to Sniper for inspection, freight prepaid. (B) Sniper’s liability for breach of this warranty is expressly limited to the repair or replacement, at its sole option, of any Equipment, which proves to be defective during the warranty period. All such Equipment shall be repaired or replaced ‘Ex-Works’ Sniper’s plant. (C) Sniper’s OBLIGATION TO REPAIR OR REPLACE CONSTITUTES AGREED AND LIQUIDATED DAMAGES FOR ANY BREACH OF Sniper’s WARRANTY. THIS LIMITED EXPRESS WARRANTY AND THE STATED REMEDIES FOR BREACH THEREOF, SHALL BE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES FOR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND IN LIEU OF LIABILITY FOR Sniper’s NEGLIGENCE OR FAULT AND CUSTOMER'S RIGHTS AND REMEDIES UNDER THE TEXAS DECEPTIVE TRADE PRACTICES - CONSUMER PROTECTION ACT (CHAPTER 17, TEXAS BUSINESS AND COMMERCE CODE.)
3. CANCELLATION: Purchase orders may be cancelled only with Sniper’s written consent and may result in a cancellation charge.
4. PRICING: (A) Prices for all Equipment are provided by quotation, ‘Ex-Works’ Sniper’s plant or district stock points. (B) Requests for Equipment quotation should be sent to the appropriate Sniper office; (C) Quoted prices are valid for 30 days unless otherwise noted on the quotation. (D) Cost of additional labor, materials or outside services for modification of such procedures or specifications requested by Customer will be charged to Customer at Sniper’s total cost.
5. PAYMENT: (A) Unless specified to the contrary in writing, payment shall consist of (i) an initial down payment equaling 50% of the total price of the purchase order which is due and payable at the time of the placement of the purchase order to Sniper, and (ii) the remaining 50% balance of the purchase order shall be due and payable prior to delivery. Sniper will not process or enter into production any purchase order request without the initial down payment. Sniper will not ship an order without the order being paid in full. An Irrevocable Letter of Credit for 100% of the total purchase price may be permitted in lieu of the initial deposit and shall be subject to approval by Sniper. (B) All payments terms are net cash, payable without offset, in United States Dollars and all payments shall be by wire transfer to the account designated by Sniper. (C) If in the judgment of Sniper the financial condition of Purchaser at any time prior to delivery does not justify the terms of payment specified, Sniper may require full payment in advance, payment security satisfactory to Sniper, or may terminate the order, whereupon Sniper shall be entitled to receive reasonable cancellation charges. If delivery is delayed by Purchaser, payment shall be due on the date Sniper is prepared to make delivery. Delays in delivery or nonconformities in any installments delivered shall not relieve Purchaser of its obligation to accept and pay for remaining installments. (D) Sniper reserves the right to deny or limit the Equipment sold to Purchaser. (E) Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1.5% per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus Sniper 's attorneys' fees and court costs incurred in connection with collection.
6. DELIVERY/DISCLAIMER: (A) Sniper will use its best efforts to have Equipment ready for shipment, subject to receipt of all necessary Customer information, including approved drawings. HOWEVER, Sniper ASSUMES NO LIABILITY FOR DAMAGES INCURRED AS A RESULT OF ITS LATE DELIVERY OF EQUIPMENT, REGARDLESS OF CAUSE. (B) Title and risk of loss will pass to Customer upon delivery of Equipment, Ex-Works plant. (C) If unable to deliver, Sniper may charge Customer its customary storage rates and Customer will maintain all-risk property insurance on Equipment, at its replacement value. Sniper will not be liable for deterioration of Equipment resulting from atmospheric conditions, acts of God, or other events not within Sniper’s reasonable control. 7. CUSTOMER'S INDEMNITY OF Sniper: CUSTOMER WILL DEFEND, INDEMNIFY, RELEASE AND HOLD Sniper HARMLESS FROM AND AGAINST ALL CLAIMS AGAINST Sniper OF EVERY KIND OR CHARACTER WHATSOEVER, IRRESPECTIVE OF WHETHER Sniper WAS CONCURRENTLY NEGLIGENT OR AT FAULT FOR ANY SUCH CLAIMS, WHETHER SUCH CLAIMS ARE BASED ON THEORIES OF CONTRACT LAW, TORT LAW, OR OTHERWISE, DIRECT OR INDIRECT, INCLUDING INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES FOR BODILY INJURY, DEATH OR PROPERTY DAMAGE OR DESTRUCTION OR ECONOMIC LOSS (INCLUDING, BUT NOT LIMITED TO SUBSURFACE PROPERTY OR PROPERTY RIGHTS), OR ON ACCOUNT OF INFRINGEMENT OF ANY PATENT, DESIGN, COPYRIGHT, OR TRADE NAME OR MARK, ARISING OUT OF, DIRECTLY OR INDIRECTLY, OR IN ANY MANNER CONNECTED WITH SUCH EQUIPMENT, INCLUDING ALL CLAIMS RESULTING, EITHER IN WHOLE OR IN PART, FROM Sniper 'S ALLEGED BREACH OR BREACH OF IMPLIED OR EXPRESSED WARRANTY (EXCEPT AS SPECIFICALLY PROVIDED HEREIN), OR OF THE DOCTRINE OF STRICT LIABILITY IN TORT OF Sniper OR ANY OTHER PERSON OR LEGAL ENTITY FOR WHICH Sniper IN LAW WOULD OTHERWISE BE HELD LIABLE.
RENTAL AND SERVICE TERMS
1. LEASE SECURITY INTEREST: Customer and Sniper agree that all rentals of Equipment shall be a “true lease” of the Equipment and not a sale of the Equipment. Title to all Equipment Customer rents from Sniper shall remain in Sniper, and Customer shall not acquire any interest in such Equipment other than a leasehold, unless Customer exercises any purchase option and pays Sniper in full for such Equipment pursuant to such purchase option. Customer grants Sniper a security interest in all Equipment Customer rents from Sniper, and all replacements or substitutions therefore, and any proceeds therefrom, including, but not limited to, proceeds in the form of chattel paper as security for the payment and performance by Customer of all of its obligations to Sniper. Customer shall do any act and execute, acknowledge, deliver, file, register, and record any documents which Sniper deems desirable in its sole discretion to protect Sniper’s rights and title in and to the Equipment, and Customer hereby irrevocably appoints Sniper as Customer’s attorney-in-fact for the signing and filing of such documents and authorizes Sniper to delegate these limited powers. 2. LIMITED WARRANTY/DISCLAIMER: (A) Sniper uses its best efforts to ensure that Equipment is in good condition. Sniper Equipment will attempt to perform the work requested; however, because of the nature of the work to be accomplished and unpredictable conditions, such results cannot be and are not guaranteed. (B) Customer agrees Sniper shall not be responsible for any decisions made on any job. Rather, Customer shall retain complete control and supervision of the well and performance of operations in and about the well. (C) Customer will pay Sniper for Equipment and/or Services whether or not the desired results are achieved without any deduction or offset of any kind, irrespective of any Claims which Customer may assert or allege against Sniper or any supplier and/or manufacturer of Equipment and/or Services, at the rates indicated in the Quotation in effect at the time of delivery. Customer will be invoiced at the rental, daily, and service rates in effect at the beginning of the invoice period. (D) Customer shall make payments to: Sniper (E) Sniper MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE DESIGN, OPERATION, CONDITION OR QUALITY OF THE MATERIAL OR WORKMANSHIP OF EQUIPMENT DELIVERED TO CUSTOMER HEREUNDER, NOR ANY WARRANTY OF MERCHANTABILITY OR FITNESS OF EQUIPMENT FOR ANY PARTICULAR PURPOSE OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, IT BEING AGREED THAT ALL SUCH RISKS AS BETWEEN Sniper AND CUSTOMER ARE TO BE BORNE BY CUSTOMER, WHETHER OR NOT SUCH EQUIPMENT IS OPERATED UNDER Sniper’s SUPERVISION, ALL SUCH EQUIPMENT IS ACCEPTED BY CUSTOMER "AS IS". 3. CHARGES: (A) Rental Charges: (i) Charges begin when Equipment enters the well and continues until the Equipment is removed the well (rig floor to rig floor), or until Sniper is notified that such Equipment is lost or damaged beyond repair. (ii) No Personnel services or technical supervision are included in such charges; (iii) Rentals are subject to a minimum charge. (B) Daily Charges: (i) All daily charges are on a 24-hour day basis or any part stated therein. (Customer shall be charged a full calendar days' rental for any portion of a calendar day, which day shall end at midnight.) (ii) Daily rate charges begin when Equipment departs Sniper’s store location where based and continue until return to that store location, or until Sniper is notified that such Equipment is lost or damaged beyond repair. (iii) If Equipment are dispatched at Customer's request, but are later cancelled, Customer will be invoiced for a "dead call". (C) Service Charges: All service charges are on a per Equipment basis, subject to any minimum charge. (D) Repair Charges: All repair charges are on a per Equipment basis, subject to any minimum charge. (E) Sub-Rentals: Third party Equipment will be subject to such third party's warranty, if any, and will be invoiced at such third party rates.
(F) Payment: All payments terms are net cash, payable without offset, in United States Dollars and payable within thirty (30) days from the invoice date. (G) Late Charge: Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1.5% per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus Sniper 's attorneys' fees and court costs incurred in connection with collection. 4. CUSTOMER'S RESPONSIBILITY FOR EQUIPMENT/DISCLAIMER: (A) Customer agrees to return all Equipment to Sniper in as good a condition as when dispatched from Sniper’s store location, ordinary wear and tear from reasonable use excepted. Customer assumes all risk of loss, destruction or damage to Equipment from the time it departs Sniper’s store location until it is returned to that same store location, or a nearer point designated by Sniper, or until it is declared lost or damaged beyond repair by Sniper. No damages or charges of any kind, either for labor, expenses or otherwise, suffered or incurred by Customer in repairing or replacing defective goods, or occasioned by them will be allowed. (B) Customer agrees to pay Sniper the entire cost of any repairs, cleaning, and/or inspections performed by Sniper and/or third parties as specified in the Quotation. (C) ALL EQUIPMENT NOT RETURNED, FOR WHATEVER REASON, OR DAMAGED BEYOND REPAIR, WILL BE PAID FOR BY CUSTOMER AT THE RESPECTIVE MANUFACTURER'S CURRENT LIST PRICE, NEW. Accrued charges cannot be applied against purchase price or cost of repairs of Equipment damaged or not returned. Equipment billed as a sale after having been damaged beyond repair will be held for Customer without charge, for 60 days after invoice date, and if not removed, will be subject to disposal without liability to Sniper. (D) Customer will not use, operate, maintain or store Equipment improperly, carelessly or in violation of this Contract or of any applicable regulatory or statutory requirements, or use or request that it be used for a purpose or job other than the purpose or job for which it is supplied. (E) Title to Equipment will remain in Sniper. Customer will not permit Equipment to become subject to any lien, charge or encumbrance. Sniper may enter the premises during business hours where Equipment is located to inspect it or upon Customer's default, to repossess it. (F) Additional charges will apply to special tools and services, as specified in the Quotation.
5. CUSTOMER'S INDEMNITY OF Sniper: CUSTOMER WILL DEFEND, INDEMNIFY, RELEASE AND HOLD Sniper HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AGAINST Sniper OF EVERY KIND OR CHARACTER WHATSOEVER, WHETHER SUCH CLAIMS ARE BASED ON THEORIES OF CONTRACT LAW, TORT LAW, OR OTHERWISE, DIRECT OR INDIRECT, INCLUDING INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES CAUSED BY Sniper ARISING OUT OF DELIVERY, PICK-UP, REPAIR, USE, OR OPERATION OF EQUIPMENT RELATING TO TERMINATION OF THIS CONTRACT OR ON ACCOUNT OF BODILY INJURY OR DEATH OR PROPERTY DAMAGE, DESTRUCTION OR ECONOMIC LOSS (INCLUDING, BUT NOT LIMITED TO, DAMAGE TO RESERVOIR, FORMATION OR SUBSURFACE PROPERTY OR PROPERTY RIGHTS) BECAUSE OF LEASE, RENTAL, PURCHASE, DELIVERY, POSSESSION, OPERATION, USE, CONDITION OR RETURN OF EQUIPMENT DURING THE TERM OF THIS CONTRACT, WHETHER BY Sniper, CUSTOMER OR OTHERWISE, IRRESPECTIVE OF WHETHER Sniper WAS CONCURRENTLY NEGLIGENT OR AT FAULT FOR ANY SUCH CLAIMS.
6. INSPECTION: Customer's acceptance of delivery and signature of its representative is conclusive evidence that Customer found Equipment to be suitable for its needs and in good condition. Customer also has a duty to inspect Equipment prior to use and to notify Sniper immediately of any defects.