Terms and Conditions for Sales and Rentals of Goods
Last updated: November 1, 2023
Terms and Conditions for Sales and Rentals of Goods
1. Parties and Terms
These Terms and Conditions for Sales and Rentals of Goods (“General Terms”) are incorporated into and supersede the terms and conditions of any purchase order (a “Purchase Order”) issued to Ulterra Drilling Technologies, L.P. or its affiliate (“Ulterra”) by the entity purchasing or renting (“Customer”) the drill bits and related parts described therein (“Goods”). The terms and conditions of these General Terms apply to both the sale of Goods (“Sale”) and the rental of Goods (“Rental”) by Ulterra, unless a specific provision states that it only applies to either a Sale or Rental or a heading for that provision specifies that it applies to a Sale or a Rental.
2. Acceptance of General Terms
These General Terms are accepted by Customer by execution of these General Terms in the space provided below. Except for terms common to a purchase order (such as identifying the product(s) being sold, price, time and place of delivery, and payment instructions), Ulterra rejects any additional or contrary terms and conditions contained in any other document. These General Terms and the Purchase Order may be amended, modified or changed only by a written amendment signed by an authorized representative of each party.
The price for the Goods shall be the price listed on the Purchase Order (“Price”). All Prices are set forth in United States Dollars. All Prices are exclusive of all sales, use, excise, and value-added taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer or that may accrue in connection with the Purchase Order. Additionally, all Prices are exclusive of costs related to shipping the Goods, including packing and preparation for export shipment, inland or ocean freight, insurance or forwarding fees, taxes, or duties of any kind or other similar charges applicable to the Goods. Customer shall be responsible for and shall release, protect, defend, indemnify and hold harmless Ulterra for all such taxes, duties and charges.
4. Quantity of Goods
(b) Ulterra may, in its sole discretion, without liability or penalty, make partial orders of Goods available to Customer at the Delivery Point (as defined below). Each portion of Goods made available will constitute a separate sale or rental, and Customer shall pay for the units made available whether such portion is in whole or partial fulfilment of the quantity purchased or rented under a Purchase Order.
(c) The quantity of any installment of Goods as recorded by Ulterra on dispatch to the Delivery Point is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary. Ulterra shall not be liable for any non-delivery of Goods (even if caused by Ulterra’s negligence) unless Customer gives written notice to Ulterra of the non-delivery within five (5) days of the date when the Goods would in the ordinary course of events have been received. Any liability of Ulterra for non-delivery of the Goods shall be limited to delivering the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
(a) Sale Goods.
(1) The Goods will be delivered at the time and to the location (the “Delivery Point”) specified in the Purchase Order. Customer shall be responsible for arranging transportation of the Goods from the Delivery Point, and Ulterra shall not be liable for any delays, loss or damage in transit.
(2) If for any reason Customer fails to accept delivery of any of the Goods on the date fixed pursuant to the Purchase Order or Ulterra’s notice that the Goods have been made available at the Delivery Point: (i) risk of loss to the Goods shall pass to Customer; (ii) the Goods shall be deemed to have been delivered; and (iii) Ulterra, at its option, may store the Goods until Customer picks them up, and Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(b) Rental Goods. The Goods will be delivered at the time and to the Delivery Point specified in the Purchase Order, and picked up by Ulterra and the end of the rental term. Ulterra shall be responsible for arranging transportation of the Goods to and from the Delivery Point, unless specified otherwise in a particular Purchase Order.
6. Customer’s Exporting of Sale Goods; Applicable Laws
(a) If the Goods sold are for export, Customer shall be responsible for arranging for transportation, insurance and compliance with local country export/import or re-export laws and clearances. Ulterra shall cooperate with Customer in providing any information or documentation necessary for Customer to obtain export licenses.
(b) Foreign Assets Control (“OFAC”), and (ii) any other government with jurisdiction over the Goods (collectively, the “Control Laws”). Customer represents and warrants that it (x) is familiar with the requirements of United States economic and trade sanctions and export control laws and regulations, including the EAR and OFAC regulations, and (y) is familiar, or will become familiar, with the Control Laws of each country from which or into which Customer exports or imports the Goods
(c) Customer represents and warrants that (i) it will comply with all Control Laws and will not export, import, transport, transfer, or reexport the Goods to any destination, entity, or person prohibited under such Control Laws or for a use restricted or prohibited under such Control Laws without first fully obtaining all appropriate authorization(s) from the United States government and any government(s) with jurisdiction over such export, import, transport, transfer, or reexport; (ii) it has conducted appropriate restricted party screening on all entities and persons, which or who will take receipt of, benefit from, or otherwise use the Goods, against all applicable lists of sanctioned, ineligible, or restricted parties issued by the United States and all governments with jurisdiction over such export, import, transport, transfer, or reexport, including, without limitation, any such lists maintained by OFAC, BIS, or any other applicable governmental entity, and has complied and will comply with the legal requirements applicable to both the Customer and Ulterra with respect to parties designated on such lists; and (iii) Ulterra’s sale and delivery of the Goods hereunder and Customer’s receipt, use, export, import, transport, transfer, or reexport of the Goods shall not subject Ulterra to any liability under the Control Laws.
(d) Customer acknowledges and agrees that it is Customer’s responsibility to obtain any and all appropriate approvals from applicable government entities, which may include the United States government or any other government(s) with jurisdiction over the Goods, prior to exporting the Goods from any country or importing the Goods into any country. Without limiting the foregoing, Customer shall determine any export license requirements, obtain any export license or other official authorization, and carry out any customs formalities for the export of the Goods.
(e) Ulterra and Customer understand that this transaction may be a “routed transaction” for purposes of Section 758.3 of the EAR. Customer expressly assumes responsibility for determining United States export licensing requirements and obtaining any license or other authority required for the export or reexport of the Goods.
(f) Customer specifically represents and warrants that the transactions and the provision of the Goods contemplated by this Agreement will not result in or facilitate any release of technology (including, without limitation, discussing or allowing inspection of any related technology), any transaction or any transfer to, with or for the following locations, persons, or uses: (i) Cuba, the Crimea region, the Donetsk People’s Republic, the Luhansk People’s Republic, North Korea, Syria, Iran, and the governments of, or parties in, these regions/countries; (ii) military uses (including to armed forces organizations or any person or entity whose actions or functions are intended to support military end uses); (iii) oil and gas activities in the Russian Federation or Iran; (iv) parties identified on various restricted parties lists maintained by any government with jurisdiction over Ulterra or its affiliates; or (v) based on the export classification of an item, any destination requiring an export or reexport license that has not been obtained.
(g) CUSTOMER SHALL PROTECT, INDEMNIFY, AND DEFEND ULTERRA FOR ANY LOSSES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY FAILURE TO COMPLY WITH OR ANY VIOLATION OF ANY CONTROL LAWS BY CUSTOMER OR ANYONE ACTING ON BEHALF OF OR PERFORMING SERVICES FOR CUSTOMER. LOSSES INCLUDE, WITHOUT LIMITATION, ANY PENALTIES AND FINES IMPOSED BY ANY GOVERNMENT AGENCY WHEREVER INCURRED, THE COSTS THAT ULTERRA MAY INCUR TO INVESTIGATE ANY ALLEGATIONS OR WRONG-DOING BY CUSTOMER OR ANYONE ACTING ON BEHALF OF OR PERFORMING SERVICES FOR CUSTOMER, AND ANY CONSEQUENTIAL DAMAGES OR LOSSES SUFFERED BY ULTERRA ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THE MISCONDUCT UNDER THE CONTROL LAWS BY CUSTOMER OR ANYONE ELSE ACTING ON BEHALF OF OR PERFORMING SERVICES FOR CUSTOMER.
(h) Ulterra reserves the right to not make the Goods available to Customer and terminate the Purchase Orders, or to perform warranty services for delivered Sales or Rental Goods, without liability to Customer, if Ulterra has a good faith basis for believing Customer or any of its related parties has violated, or intends to violate, any Control Laws. All required permits, licenses, approvals and inspections shall be secured by Customer, and any fees associated therewith shall be the responsibility of Customer. Customer represents that it is not on any United States or other country’s restricted or denied party lists.
7. Title and Risk of Loss
(a) Sale Goods. Title and risk of loss passes to Customer upon delivery of the Goods at the stated Delivery Point. As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Ulterra a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Texas Uniform Commercial Code.
(b) Rental Goods. Title to and ownership of any Rental Goods shall at all times remain with Ulterra. Risk of loss for Rental Goods shall always remain with Ulterra, subject to the provisions of Section 9(b)(2).
8. Inspection and Rejection of Nonconforming Goods
(a) Customer shall inspect the Goods within five (5) days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies Ulterra in writing of any Nonconforming Goods during the Inspection Period and furnishes such documentation of nonconformance as reasonably required by Ulterra. “Nonconforming Goods” means only that the product received is different than identified in the applicable Purchase Order.
(b) Sale Goods. If Customer timely notifies Ulterra of any Nonconforming Goods, Ulterra shall, in its sole discretion: (i) replace such Nonconforming Goods with conforming Goods and make them available to Customer pursuant to Section 5(a); or (ii) credit or refund the Price for such Nonconforming Goods. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to the Ulterra facility instructed by Ulterra. If Ulterra exercises its option to replace Nonconforming Goods, Ulterra shall, after receiving Customer’s Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replacement Goods to the Delivery Point. Customer acknowledges and agrees that the remedies set forth in this Section are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section, all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under a Purchase Order to Ulterra.
(c) Rental Goods. If Customer timely notifies Ulterra of any Nonconforming Goods that are Rental Goods, Ulterra shall, in its sole discretion: (i) replace such Nonconforming Goods with conforming Goods; or (ii) repair such Nonconforming Goods. Customer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Goods that are Rental Goods.
(a) Sale Goods.
(1) Ulterra warrants to Customer (and not to any of Customer’s successors in interest or title) that for a period of six (6) months from the date of shipment of Goods (“Warranty Period”), such Goods will materially conform to the specifications set forth in the applicable Purchase Order and will be free from material defects in material and workmanship.
(2) Ulterra shall not be liable for a breach of the warranty set forth in Section 9(a)(1) if: (i) Customer makes any further use of such Goods after giving notice of the alleged breach to Ulterra as described in Section 9(a)(3); (ii) the defect arises because Customer failed to follow Ulterra’s oral or written instructions as to the storage, installation, commissioning, use, handling, operation, maintenance, or overhaul of the Goods; (iii) Customer alters, modifies or repairs such Goods without the prior written consent of Ulterra; or (iv) the Goods have been subject to any accident, misuse, neglect, or negligence after delivery to Customer. This warranty shall not apply to any Goods to the extent that the defect or non-conformity is attributable to any part not supplied by or approved by Ulterra.
(3) Ulterra shall not be liable for a breach of the warranty set forth in Section 9(a)(1) unless: (i) Customer gives written notice of the defect, reasonably described, to Ulterra within ten (10) days after the time when Customer discovers or ought to have reasonably discovered the defect; (ii) Ulterra is given a reasonable opportunity after receiving the notice to examine such Goods and Customer (if requested to do so by Ulterra) returns such Goods to Ulterra’s place of business for examination; and (iii) Ulterra reasonably verifies Customer’s claim that the Goods are defective. Customer will be responsible for round-trip transportation costs to and from Ulterra’s facility for any defective or non-conforming Goods returned to Ulterra and any replacement Goods. Ulterra’s obligations under these warranties are conditioned on Customer maintaining records that accurately reflect maintenance performed on the Goods and establish the nature of any unsatisfactory condition of the Goods. Ulterra, at its request, shall be given access to such records for substantiating warranty claims.
(4) Subject to Section 9(a)(2) and 9(a)(3) above, with respect to any defective or non-conforming Goods during the Warranty Period, Ulterra shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part); or (ii) credit or refund the price of such Goods. In the case of any Goods (or part thereof) repaired or replaced by Ulterra, the Warranty Period shall remain in effect for the remainder of the Warranty Period or for three (3) months from the date of shipment of the repaired or replaced Goods, whichever is longer.
(5) THE REMEDIES SET FORTH IN SECTION 9(a)(4) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ULTERRA’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9(a)(1).
(6) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(a)(1) AND 9(a)(4), ULTERRA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; OR (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(7) Products manufactured by a third party (“Third-Party Product”) may constitute, contain, or be contained in, incorporated into, attached to or packaged together with, the Goods. Third-Party Products are not covered by the warranty in Section 9(a)(1). Parts or components not manufactured Ulterra shall be in accordance with and subject to the standard warranty provisions of the manufacturer or supplier thereof, which warranty constitutes the sole obligation of Ulterra and the sole remedy of Customer. For the avoidance of doubt, ULTERRA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(b) Rental Goods
(1) Except for the provisions of Section 9(b)(2), Ulterra shall be liable during the term of Customer’s Rental for repairing or replacing, at its sole option, defective or non-conforming Rental Goods. In such case, Customer shall provide Ulterra with written notice of the defect, reasonably described. Customer shall not make any further use of such Rental Goods after giving such notice. Should Ulterra decide to repair the Rental Good, Ulterra will also decide whether to repair the Rental Good at Customer’s location or whether to bring it back to Ulterra’s facility. Ulterra shall assume round-trip transportation costs for defective or non-conforming Rental Goods to and from Customer’s facility. Ulterra’s obligations under these warranties are conditioned on Customer’s obligation to maintain records that will accurately reflect maintenance performed on the Goods and establish the nature of any unsatisfactory condition of Ulterra’s Goods. Ulterra, at its request, shall be given access to such records for substantiating warranty claims.
(2) For Rental Goods, Customer shall be solely responsible for any loss or damage (other than normal wear and tear) to Rental Goods in use by Customer or otherwise in Customer’s custody, care, or control. For any Rental Goods that are lost-in-hole or damaged beyond repair (other than as a result of the gross negligence of Ulterra), Customer shall reimburse and pay to Ulterra an amount equal to the replacement value of such Rental Goods as reasonably determined by Ulterra.
10. Limitation of Liability
(a) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED FOR HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PRODUCT, LOSS OF USE, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, LOSS OF OTHER PROPERTY OR EQUIPMENT, OR BUSINESS INTERRUPTION ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THE USE OF THE GOODS OR ANY BREACH OF A PURCHASE ORDER OR THESE GENERAL TERMS, REGARDLESS OF: (i) WHETHER SUCH DAMAGES WERE FORESEEABLE; (ii) WHETHER OR NOT CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED; AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL ULTERRA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO A PURCHASE ORDER, WHETHER ARISING OUT OF OR RELATED TO THE USE OF THE GOODS OR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE PRICE PAID TO ULTERRA FOR THE GOOD OR PART THEREOF WHICH GIVES RISE TO THE CLAIM; PROVIDED THAT THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY IN FULL THE PRICE FOR THE GOODS.
11. Payment Terms
(a) Customer shall pay all invoiced amounts due to Ulterra within thirty (30) days from the date of Ulterra’s invoice. Customer shall make all payments hereunder as provided in “Payment Instructions” set forth in the applicable Purchase Order and in United States Dollars. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Ulterra for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
(b) Unless waived by Ulterra, payment on orders for shipment to countries other than the United States of America shall be made by Letter of Credit to be established by Customer, at its expense, including bank confirmation charges. All Letters of Credit shall be in favor of and acceptable to Ulterra, shall be maintained in sufficient amounts and for the period necessary to meet all payment obligations, shall be irrevocable and issued or confirmed by a bank in the United States.
(c) Customer shall have no right under these General Terms, a Purchase Order, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Ulterra or any of its affiliates, against any other amount owed (or to become due and owing) to it by Ulterra or its affiliates, whether relating to Ulterra’s or its affiliates’ breach or non-performance of these General Terms, a Purchase Order or any other agreement between Customer or any of its affiliates, and Ulterra or any of its affiliates, or otherwise.
(a) Customer shall release, protect, indemnify, defend and hold harmless Ulterra and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under these General Terms or a Purchase Order and the cost of pursuing any insurance providers, incurred by Indemnified Party/awarded against Indemnified Party in a final non-appealable judgment, relating to/arising out of or resulting from any claim of a third party or Customer arising out of or occurring in connection with the Sale or Rental of Goods from Ulterra or from Ulterra’s actions, inactions, negligence, willful misconduct or breach of a Purchase Order unless such action is based on a claim where the Goods are wholly in Ulterra’s possession and control. Customer shall not enter into any settlement without Ulterra’s or Indemnified Party’s prior written consent.
(b) None of the Indemnified Parties shall have any liability or responsibility whatsoever to whomsoever for any pollution or contamination, including the costs of cleanup, howsoever caused, arising or occurring, whether through the negligence or legal fault of Ulterra or its employees, agents or representatives or otherwise, in any way relating to the sale of Goods hereunder. Customer shall assume all responsibility for and shall release, protect, defend, indemnify and hold harmless Indemnified Party from and against any loss, damage, liability, suit, claim, fine or expense as a result of pollution or contamination, or the environmental cleanup required by law or by direct or indirect contractual obligations of Customer in any way relating to the Sale or Rental of Goods hereunder or the use of the Goods.
(c) Ulterra shall not be liable to indemnify, defend and hold harmless Customer for any claims that the Goods infringe any third-party intellectual property rights to the extent such claims arise out of any use or modification of Ulterra’s Goods that is not authorized by Ulterra.
13. Intellectual Property
Ulterra retains all intellectual property rights in the Goods including but not limited to any and all patent, trade secret, trademark or copyright rights. Customer shall have no such rights by virtue of entering into a Purchase Order. Without limiting the generality of the foregoing, Customer agrees that it shall not, following its purchase or rental of the Goods hereunder, build, manufacture, fabricate or reverse engineer the Goods, or sell or use any item so built, manufactured, fabricated or reverse engineered.
Each party, at its own expense, shall maintain and carry Commercial General Liability Insurance in a minimum of $1,000,000 per occurrence ($2,000,000 Aggregate) on ISO Coverage Form CG 00 01 (or equivalent) at all times during the term a Purchase Order is in effect with financially sound and reputable insurers so that it can support its indemnity and other obligations under these General Term. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Ulterra’s insurers, Ulterra, and the other Indemnified Parties. Upon request, a party shall provide a certificate of insurance from such party’s insurer evidencing the insurance coverage specified in these General Terms. Each party shall provide the other with reasonable advance written notice in the event of a cancellation or material change in such party’s insurance policy.
15. Confidential Information
All non-public, confidential or proprietary information of Ulterra, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Ulterra to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with a Purchase Order is confidential, solely for the use of performing the Purchase Order and may not be disclosed or copied unless authorized by Ulterra in writing. Upon Ulterra’s request, Customer shall promptly return all documents and other materials received from Ulterra. Ulterra shall be entitled to injunctive relief for any violation of this Section since such breach would cause irreparable harm to Ulterra for which there would be no adequate remedy at law. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Customer at the time of disclosure; or (c) rightfully obtained by the Customer on a non-confidential basis from a third party.
16. Force Majeure
Any delay or failure of Ulterra to perform its obligations under these General Terms or a Purchase Order will be excused to the extent that the delay or failure was caused directly by an event beyond Ulterra’s reasonable control (whether of the kind herein enumerated or otherwise), without Ulterra’s fault or negligence and that by its nature could not have been foreseen by Ulterra or, if it could have been foreseen, was unavoidable (which events may include but are not limited to natural disasters, epidemic, pandemic, or other national or regional emergency (including without limitation any localized or widespread occurrence of an infectious virus, disease, pathogen or other harmful agent), embargoes, explosions, riots, wars, acts of terrorism, strikes (except by a party’s own employees), labor stoppages or slowdowns or other industrial disturbances, shortage of adequate power or transportation facilities, and failure of Ulterra’s usual sources of supply to provide the equipment or materials that Ulterra is to use in the manufacture of the Goods).
Customer shall not assign, transfer, delegate or subcontract any of its rights or obligations under these General Terms or a Purchase Order without the prior written consent of Ulterra. Any purported assignment, transfer, delegation or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation or subcontract shall relieve Customer of any of its obligations hereunder. Ulterra may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under these General Terms or a Purchase Order without Customer’s prior written consent.
18. Governing Law; Venue
(a) These General Terms and all Purchase Orders and all matters arising out of or relating to them, are governed by, and construed in accordance with, the laws of the State of Texas, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
(b) Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to these General Terms or any Purchase Order and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the United States District Court for the Northern District of Texas or, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Tarrant County, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the United States District Court for the Northern District of Texas or, if such court does not have subject matter jurisdiction, the courts of the State of Texas sitting in Tarrant County. Each party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Any legal action by Customer for breach or any claim related to the Customer’s use of the Goods must be commenced within one (1) year from the date of the breach or the date the claim arose.
(d) The breaching party agrees to pay all costs and expenses, including reasonable attorney’s fees incurred by the non-breaching party in any action the non-breaching party brings to enforce its rights hereunder upon the issuance by a court of law of a final, non-appealable order finding the breaching party in breach of these General Terms or any Purchase Order.
(e) The parties hereby expressly opt out of the United Nations Convention on the International Sale of Goods.
19. Survival. The provisions of these General Terms covering warranty, indemnity, limitation of liability, intellectual property, confidential information, and choice of law and venue (and the other provisions of Section 18) are continuing obligations which shall survive completion or the termination of these General Terms or any Purchase Order.
20. Entire Agreement
These General Terms constitute the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
All notices, requests, consents, claims, demands, waivers and other communications under these General Terms must be in writing and addressed to the other party at its address set forth in the Purchase Order. Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these General Terms , a notice is effective only (a) on receipt by the receiving party; and (b) if the party giving the notice has complied with the requirements of this Section.
If any term or provision of these General Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these General Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court will modify these General Terms to affect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
No amendment to or modification of or rescission, termination or discharge of these General Terms is effective unless it is in writing, identified as an amendment to, modification of, or rescission, termination or discharge of these General Terms and signed by an authorized representative of each party.
No waiver by any party of any of the provisions of these General Terms shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these General Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these General Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
25. Cumulative Remedies
All rights and remedies provided in these General Terms are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise. Notwithstanding the previous sentence, the parties intend that Customer’s rights under Sections 4(c), 8(b), 8(c) and 9 are Customer’s exclusive remedies for the events specified therein.
26. Successors and Assigns
These General Terms are binding on and inures to the benefit of the parties to these General Terms and their respective permitted successors and permitted assigns.
27. No Third-Party Beneficiaries
These General Terms benefit solely the parties to these General Terms and their respective permitted successors and assigns and nothing in these General Terms, express or implied, confers on any other party, person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these General Terms.
The parties mutually agree that these General Terms, any Purchase Order and all correspondences shall be written and communicated verbally in the English language and each party warrants that they are or their designated agents are fluent in English and fully understand the contents of these General Terms.