TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS OF PURCHASE OF GEODYNAMICS PRODUCTS, ACCESSORIES, AND SERVICES
The items to which these General Terms and Conditions refer are the items supplied or sold by GEODynamics B.V., GEODynamics N.V., GEODynamics, Inc. and/or any wholly owned Subsidiary or Affiliate of GEODynamics Inc.(hereinafter referred to as “GEODynamics” or “Manufacturer”) to the purchaser thereof (hereinafter referred to as “Buyer”).
- LIMITATIONS ON USE
- DELIVERY DATES AND EXCUSABLE DELAYS
- PACKING AND SHIPPING
- CHANGES, CANCELLATIONS AND RETURNS
- OTHER MANUFACTURER'S EQUIPMENT
- USE AND ACCEPTANCE OF ITEM
- LIMITED WARRANTY AND REMEDY
- LIMITED STATUE OF LIMITATIONS
- CHOICE OF LAW
- U.S. EXPORT COMPLIANCE
- INTELLECTUAL PROPERTY
- CONFLICT OF INTEREST
- CONFIDENTIAL INFORMATIONS
- MISCELLANEOUS TRADEMARKS
1. LIMITATIONS ON USE
(a) Sale of Perforation Products, Completion Tools, and Accessories and Services (“Products”) manufactured by GEODynamics, and/or its affiliates and subsidiaries ("GEODynamics"), are subject to the terms of this Section, and Buyer accepts the limitations of this Section. Buyer recognizes and agrees that GEODynamics has spent a great deal of engineering and development time on its Products, which incorporate intellectual property in the form of patented and unpatented technology and trade secrets, some of which is licensed to GEODynamics on a limited basis. Buyer understands GEODynamics desire that the Products not be obtained, reviewed, analyzed, and/or reverse engineered by others. Therefore, unless otherwise agreed in writing by an officer of GEODynamics in advance, Buyer asserts and agrees that they are the end user of the Products and agrees not to resell or transfer said Products to any third parties. Buyer understands and agrees that any such transfer could create economic damages to GEODynamics in the event Products were ultimately obtained, reviewed, analyzed and/or reverse engineered by GEODynamics competitors. It is understood and agreed by the parties that reviewing data resulting from use of the Products in a customer well is permissible and shall not be considered “analyzing” the Product for purposes of this paragraph. Buyer further agrees that it shall not publish or disseminate or share with any third party (other than the customer for whom Product was used) information about the Products without the express written approval of GEODynamics.
(b) Buyer agrees to use the Products solely for the purpose of downhole use in wells in which Buyer has an interest as operator or service provider, and for no other purpose. Any attempted or purported sale, assignment, or transfer by Buyer of any of the Products to any third party is prohibited, unless otherwise agreed in writing by an officer of GEODynamics in advance.
(c) Buyer agrees not to disassemble the Products, perform tests on the composition or design of the Products, conduct an internal inspection of the Products, test fire the Products, or send the Products to any lab capable of performing such test, or to permit others to do so.
(d) Buyer understands and agrees that any violation of this Section may create economic damages to GEODynamics, and in addition will cause irreparable harm to GEODynamics, for which GEODynamics shall be entitled to seek injunctive relief.
(a) All prices are expressed in U.S. dollars (with consideration for other currencies, see (c) below) net FOB (or FCA if Buyer is located in any jurisdiction outside the United States of America) or any GEODynamics facility in the United States of America, as specified in GEODynamics quotation or other sale documentation, and unless otherwise agreed in writing by GEODynamics, are subject to change without notice and are at the prices in effect at the time of order placement. Quotations will be given on request for any item(s) offered by GEODynamics. Quotations will remain in effect only for the period of validity specified therein or, if no such period is stated, for ninety (90) days from the date the quotation is given.
(b) All prices are exclusive of costs of transportation and insurance and, federal, state and local use, sales, property (ad valorem) and similar taxes and license fees, import duties and the like. Note that this list is not exhaustive and Buyer shall be liable to pay any other taxes that may arise or be imposed by any federal, state and local authority. Buyer agrees, by purchase of an item, to pay such costs, taxes, fees and duties, and where appropriate, report the same. When and where applicable, such costs, taxes, fees and duties will appear as separate line items on GEODynamics invoice. Buyer shall pay all rigging, draying and transportation charges.
(c) Prices may be expressed in currencies other than US Dollars as mutually agreed upon by the Parties on a case-by-case basis.
Payment for all items is net cash in U.S. dollars upon delivery or shipment except that a Buyer with an established credit account currently approved by GEODynamics shall pay net cash within thirty (30) days following invoice date unless otherwise agreed in writing by an officer of GEODynamics. Partial shipments will be invoiced as made. Invoices are payable at the lockbox designated on GEODynamics invoice.
4. DELIVERY DATES AND EXCUSABLE DELAYS
All shipment and/or delivery dates are subject to GEODynamics availability schedule. If Buyer is located in a jurisdiction outside the United States of America, GEODynamics obligation to deliver the items sold under these General Terms and Conditions shall be fully discharged upon delivery of the items FCA, from GEODynamics warehouse in Millsap, Texas. For purposes of these General Terms and Conditions, the term FCA shall have the meaning set forth in the INCOTERMS 2000 published by the International Chamber of Commerce. GEODynamics will make every reasonable effort to meet any delivery date(s) quoted; however, GEODynamics shall not be liable for its failure to meet any quoted delivery date(s) or for any delay in performance due to unforeseen circumstances or any causes beyond GEODynamics control in instances of force majeure. Performance shall be deemed suspended during and extended for such time as any such circumstances or causes delay in its execution. Whenever such circumstances or causes have been remedied, GEODynamics will make and Buyer shall accept performance hereunder. No penalty clause of any kind shall be effective. As used herein, performance shall include, without limitation, fabrication, assembly, shipment, delivery and warranty repair or replacement, as applicable. Any variation of delivery specifications shall be agreed by the Parties on a case-by-case basis.
5. PACKING AND SHIPPING
All items shall be packed, if appropriate, for shipping and storage in accordance with standard industry practices. See paragraph 6 for return shipment packaging.
(a) Normally GEODynamics will ship in accordance with Buyer’s shipping instructions. In the absence of shipping instructions or unsuitable Buyer’s shipping instructions, GEODynamics reserves the right to ship by an appropriate method per standard industry practice.
(b) Title to items sold and risk of loss and damage shall pass to Buyer upon delivery by GEODynamics to common carrier for shipment to Buyer, or to Buyer directly, as the case may be.
6. CHANGES, CANCELLATIONS AND RETURNS
1. GEODynamics reserves the right to change design(s), materials and specifications, and to discontinue item(s) without any liability to Buyer. Any such changes shall be notified in writing to the Buyer.
2. If Buyer issues a change order or cancels an order, Buyer shall be liable to pay to GEODynamics the unpaid balance of the order price for work completed by GEODynamics at the date of change or cancellation including reimbursement of all costs irrevocably and reasonably incurred and paid or committed in good faith in respect of the part of the order not completed on such termination. In return for such payment, Buyer shall be entitled to receive all the works completed by GEODynamics at the date of cancellation free of defects in material or workmanship, including all warranties provided under these Terms and Conditions.
3. NO CREDIT SHALL BE GIVEN FOR ANY ITEM RETURNED WITHOUT THE PRIOR APPROVAL OF AN AUTHORIZED REPRESENTATIVE OF GEODYNAMICS AUTHORIZING THE RETURN BY ISSUING THE BUYER A RETURN MATERIAL AUTHORIZATION (RMA). Only sales managers or officers of GEODynamics are authorized to approve the return of items. Risk of loss or damage in respect to any item returned with GEODynamics authorization will remain with Buyer until redelivered to GEODynamics. A charge of fifteen percent (15%) shall be charged by GEODynamics on all items returned to pay for cost of inspecting, repacking, handling, credit arrangements, etc. GEODynamics shall not be responsible for holding or accounting for any items returned without prior authorization by GEODynamics with the required RMA. If freight and other transportation costs are not prepaid on any returned item, the cost thereof shall be deducted from the credit issued. No credit will be given on any non-standard item manufactured at the request of Buyer, or to the individual specifications of Buyer. No additional charges shall be paid by Buyer for items deemed by GEODynamics or other manufacturer to require return.
4. All gun hardware and other items used with explosives must be inspected to assure that there are no explosives present before packing and return shipment to GEODynamics. GEODynamics will report shipments not in full compliance with all applicable regulations and laws to the Buyer’s safety and/or regulatory compliance officers, and as appropriate to regulatory agencies such as US DOT and/or ATF.
5. A copy of the original packing list must accompany all requests for returns.
6. When the Buyer has obtained the required authorization, the Buyer must notify the GEODynamics Sales Manager of the shipping details and expected delivery date. No credit will be given unless these procedures are fully complied with.
7. Repairs to any items supplied by GEODynamics and repaired at Buyer’s request outside the normal working hours of 8:00 A.M. to 5:00 p.m. (Monday through Friday), shall be charged by GEODynamics at double the labor rate otherwise chargeable.
1. Explosive items are regulated by and must comply with regulations of a number of governmental agencies. As applicable, the Buyer must assure compliance with all regulations.
2. The sale of all explosive items is final. Exceptions specifically stated in this section apply only if they are processed and approved as indicated.
3. With the prior approval of the GEODynamics Sales Manager, as evidenced by the required RMA , items in unopened packages may be returned for credit within ninety (90) days of the date of the sale provided the following conditions are met:
(a) Items must be “normally stocked” items. Other items such as “special orders” are not eligible for return.
(b) The items must be in the original, clean, dry and undamaged packaging. All package labeling and markings must be in original condition and securely attached to packages and shall include the correct part number, description, date(s) of manufacture as indicated on the original package label, quantity, weight, and required hazardous materials markings and labels. The packages and explosive items must be in sellable condition.
(c) Packaging of explosive items is regulated by governmental agencies. Return packaging must comply with these regulations. Unless specifically approved by governmental agencies, different explosive items cannot be mixed in a package. The items must be packaged in exactly the same way as the original package. Return packaging material must be identical to the original packaging (from same package manufacture, in accordance with the governmental packaging approval). In some cases, alternate packaging conforming to the Institute of Makers of Explosive Publication IME SLP 22 is allowed.
(d) As shipper of the return items, the Buyer must execute all appropriate and required regulatory and freight shipping papers. Shipments must be in full compliance with all applicable regulations and laws. GEODYNAMICS WILL REPORT SHIPMENTS NOT IN FULL COMPLIANCE WITH ALL APPLICABLE REGULATIONS AND LAWS TO THE BUYER’S SAFETY AND/OR REGULATORY COMPLIANCE OFFICERS, AND AS APPROPRIATE TO REGULATORY AGENCIES SUCH AS US DOT AND/OR ATF. If the Buyer believes that it is not possible to meet the regulatory requirements for packaging, GEODynamics Sales Manager will determine the packing and shipping methods to be used (in compliance with applicable regulations).
(e) In the event that the explosive items can be picked up by GEODynamics in the course of another delivery, at the discretion of GEODynamics, the return freight and other transportation costs may be waived.
(f) RETURNS NOT MEETING THE STATED REQUIREMENTS MAY HAVE TO BE DESTROYED IN ACCORDANCE WITH HAZARDOUS MATERIAL DISPOSAL REGULATIONS. SUCH RETURNS MAY BE SUBJECT TO A CHARGE OF UP TO $30.00 PER POUND (GROSS WEIGHT OF ENTIRE SHIPMENT), OR SUCH LARGER AMOUNTS AS GEODynamics MAY CONSIDER REASONABLE. Third party disposal costs will be charged at cost plus 15%. GEODynamics IS NOT IN THE HAZARDOUS MATERIAL DISPOSAL BUSINESS.
(g) GEODynamics may from time to time accept prior authorized return of explosive items in previously opened or damaged packages (but repackaged for shipment, if necessary) if GEODynamics has shipped the wrong item (not in accordance with a written purchase order), if the item is subject to a GEODynamics “recall”, or for other reasons as deemed appropriate by GEODynamics.
7. OTHER MANUFACTURER'S EQUIPMENT
(a) If any items sold to Buyer by GEODynamics contain any parts or materials obtained by GEODynamics from any other party, these parts or materials are sold to Buyer AS IS. FURTHER, WITH RESPECT TO ANY SUCH PARTS OR MATERIALS, GEODynamics DISCLAIMS LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
(b) EACH GEODynamics PRODUCT (INCLUDING, BUT NOT LIMITED TO, PERFORATORS, HARDWARE, GUN ASSEMBLIES, PERFORATING SYSTEMS, DETONATORS, BOOSTERS, DETONATING CORD, WIRELINE MECHANICAL COMPONENTS, JET CUTTERS, CHEMICAL CUTTERS AND ALL OTHER DOWN HOLE TOOLS) IS DESIGNED, TESTED AND QUALIFIED TO OPERATE PROPERLY ONLY WHEN USED AS A COMPLETE “SYSTEM” PURSUANT TO THE RECOMMENDATIONS OF GEODynamics. COMBINING ANY PRODUCTS SUPPLIED BY THIRD PARTIES, WHETHER BALLISTIC OR MECHANICAL, INTO OR WHILE UTILIZING ANY GEODynamics PRODUCT, THEREBY ALTERING THE GEODynamics “SYSTEM”, IS NOT RECOMMENDED. COMBINING SUCH THIRD-PARTY PRODUCTS MAY BE UNSAFE AND UNRELIABLE AND SHALL AUTOMATICALLY VOID THE WARRANTIES SET FORTH IN THESE TERMS AND CONDITIONS. BUYER ASSUMES FULL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES RESULTING FROM SUCH COMBINATION. GEODynamics SHALL NOT BE LIABLE FOR ANY MALFUNCTION, DAMAGE, INJURY, OR SYSTEM FAILURE RESULTING FROM COMBINING GEODynamics COMPONENTS WITH COMPONENTS SUPPLIED BY A THIRD-PARTY.
8. USE AND ACCEPTANCE OF ITEM
(a) Use of the items supplied or sold by GEODynamics to Buyer shall constitute agreement of Buyer to these General Terms and Conditions. Buyer shall be deemed to have accepted any item by the Buyer’s use of the item, or in any event, no later than ninety (90) days after the first to occur of the date of shipment, or delivery, unless, before that time, GEODynamics received written notice of any defect or nonconformity from Buyer.
(b) Buyer warrants, by purchase of an item, that Buyer is familiar with the item and its proper use. Before using any item, Buyer shall give the item reasonable and prudent examination and/or tests to determine the suitability of the item for Buyer’s intended use.
9. LIMITED WARRANTY AND REMEDY
(a) Neither GEODynamics nor BUYER shall be liable to the other hereunder for any punitive, indirect, special, or consequential loss or damage suffered by the other party, whether such liability is based or claimed to be based upon any negligence or other acts of omissions on the part of GEODynamics or Buyer or either of its employees, representatives, agents, and anyone acting on any of the fore-going’s behalf or under their direction and control. Indirect, special, or consequential losses include, but are not limited to loss of use, loss of profits or revenues, business interruption, equipment downtime, interest, lost goodwill, work stoppage, impairment of other goods, loss by reason of shut-down or non-operations, increased expenses of operation, replacement of other equipment and property, the escape, release, discharge, or emission of any substance which cause or may cause any harmful or deleterious effect to any person, animal, plant, or property or to the environment, and claims by or payments to customers, suppliers, or other parties who have a contractual relationship with either party.
(b) Buyer’s remedies for any and all breaches of any nature, including without limitation, breaches of contract and warranty, are limited to the remedies of repair and replacement as specifically stated in these Terms and Conditions. The remedies provided herein are the exclusive remedies of Buyer for failure of GEODynamics to meet its warranty obligations, whether claims of Buyer are based on contract, in tort or otherwise, and upon expiration of the applicable warranty period, all obligations of GEODynamics for breach of warranty will terminate. GEODynamics will repair or replace the item at no cost to the Buyer, but the decision as to whether to repair or replace will be solely that of GEODynamics. Repaired or replacement items are only warranted for the remaining unexpired portion of the warranty period.
(c) THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED. GEODynamics EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
(d) GEODynamics warrants each item sold by it to Buyer (excluding any part or parts which are components to the item and are subject to Section 7 above concerning parts supplied by others) to be free from defects in materials and workmanship if, and only if, all of the following conditions are met:
(1) The item claimed to be defective has been exposed only to normal storage, use, and service, has been reasonably maintained, has not been subjected to misuse, negligent use, or accident which caused the item to suffer a defect, and has not been repaired or altered except by an authorized representative of GEODynamics;
(2) The item claimed to be defective has been returned at Buyer’s expense, along with an RMA, and in accordance with the return procedures of Section 6, to GEODynamics plant at Millsap, Texas (or to such other location as GEODynamics may designate), within ten (10) days after Buyer first discovers the alleged defect;
(3) The alleged defect in the item is actually caused by a defect in materials or workmanship originally supplied by GEODynamics as opposed to materials or workmanship originally supplied by others;
(4) The item is not one that is expendable in normal use and which has been expended in normal use;
(5) This warranty shall be in effect until six (6) months after receipt by Buyer, except: a) Subsurface electronic equipment is warranted only until ninety (90) days after date of sale to Buyer; b) Scintillation detectors are warranted only to be in working condition upon delivery to Buyer; and c) No subsurface electronic equipment is warranted against damage occurring when used in a down-hole drilling environment such as MWD or LWD operations; and
(6) No subsurface electronic equipment will be warranted that has been modified or repaired by someone other than GEODynamics approved representative. Equipment that has had its serial number or temperature indicator altered, defaced or removed will not be warranted;
(7) All claims under the warranty set out in these Terms and Conditions must be made promptly after the alleged defect occurs and must be received by GEODynamics within the warranty period. The claim must include the item’s description, part number, serial number (if any), date of shipment or delivery and a full description of the circumstances giving rise to the claim. Any item returned under claim of defect shall be sent prepaid by appropriate transportation. Buyer is responsible for all damage or loss resulting from improper packing or handling, and for any loss or damage occurring during the transmission of the item to GEODynamics. If any item is returned and is found not to be defective, GEODynamics will notify Buyer and, at Buyer’s option, will return the item to Buyer at Buyer’s expense. Further, in this event, Buyer will reimburse GEODynamics for all costs incurred in testing and examining the item.
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR WITH REGARD TO THEIR INTERPRETATION OR BREACH, SHALL BE SETTLED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (THE “AAA”) (OR THE INTERNATIONAL ARBITRATION RULES OF THE AAA IF THE BUYER IS LOCATED IN ANY JURISDICTION OUTSIDE THE UNITED STATES OF AMERICA). Unless otherwise required by applicable law, the parties hereto agree to arbitrate their differences in one of the locations as described below. The arbitration proceedings shall be conducted in English. The parties further agree that all claims of any type by either party, including defenses and counterclaims, shall be included in the arbitration. Either party may send written notice to (a) the other party, and (b) any Regional Office of the American Arbitration Association invoking the binding arbitration provisions of this paragraph. The parties further consent to the jurisdiction of one of the state district courts sitting in Harris or Parker County, Texas, or the United States District Court for the Southern or Northern District of Texas to enforce the provisions of this paragraph and/or to confirm any award rendered by the arbitrator.
11. LIMITED STATUE OF LIMITATIONS
AS PERMITTED BY Tex. Bus. & Com. Code Ann. §2.725, THE STATUTE OF LIMITATIONS FOR ANY BREACHES OF CONTRACT AND WARRANTY IS AGREED TO BE ONE YEAR FROM THE DATE THE CAUSE OF ACTION ACCRUES.
12. CHOICE OF LAW
ANY AGREEMENT OR TRANSACTION TO WHICH THESE GENERAL TERMS AND CONDITIONS APPLY SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF TEXAS. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR WITH REGARD TO THEIR INTERPRETATION OR BREACH SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED, AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, INCLUDING, BUT NOT LIMITED, TO TEXAS SUBSTANTIVE AND PROCEDURAL LAW AND THE TEXAS VERSION OF THE UNIFORM COMMERCIAL CODE. NO DOCTRINE OF CHOICE OF LAW SHALL BE USED TO APPLY THE LAWS OF ANY OTHER STATE, NATION OR JURISDICTION. THE PARTIES AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT OR ANY TRANSACTION SUBJECT TO THESE GENERAL TERMS AND CONDITIONS.
(a) BUYER AGREES TO UNCONDITIONALLY PROTECT, DEFEND, INDEMNIFY AND HOLD GEODynamics, ITS EMPLOYEES, OFFICERS, AGENTS, AFFILIATES AND SUBSIDIARIES HARMLESS FROM AND AGAINST ALL DEMANDS, CLAIMS, SUITS, CAUSES OF ACTION, COSTS, EXPENSES, AND DAMAGES THAT GEODynamics MAY AT ANY TIME SUFFER OR SUSTAIN OR BECOME LIABLE FOR UNDER ANY LEGAL THEORY, INCLUDING WITHOUT LIMITATION, CONTRACT, WARRANTY, DECEPTIVE TRADE PRACTICE, NEGLIGENCE, PRODUCT LIABILITY AND STRICT LIABILITY IN TORTY, BY REASON OF ANY ACCIDENTS, DAMAGES OR INJURIES, EITHER TO PERSONS OR PROPERTY OR BOTH, OF BUYER, OF ANY THIRD PARTY(S), OR OF GEODynamics OR ANY PERSONS OR FIRMS AFFILIATED WITH GEODynamics, THAT ARISES OUT OF OR RELATE TO THE USE OR MISUSE OF ANY ITEMS SOLD HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY USE OR MISUSE OF ITEM BY BUYER’S OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, AFFILIATES, SUBSIDIARIES, OR ANY OTHER PERSON OR ENTITY TO WHOM THE ITEM HAS SUBSEQUENTLY BEEN SOLD OR TRANSFERRED. BUYER FURTHER AGREES THAT GEODynamics, IT’S OFICERS, EMPLOYEES, AGENTS, AFFILIATES AND SUBSIDIARIES, SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO BUYER BY WAY OF ANY INDEMNITY THEORY, WHETHER BASED ON STATUTE, INCLUDING BUT NOT LIMITED TO, CHAPTER 82 OF THE TEXAS CIVIL PRACTICES & REMEDIES CODE, CONTRACT OR THE COMMON LAW.
(b) IN ADDITION TO THE INDEMNITY GRANTED BY BUYER TO GEODynamics AND BUYER’S WAIVER OF INDEMNITY FROM GEODynamics IN THE ABOVE SUBSECTION (a), BUYER FURTHER AGREES TO PROTECT, DEFEND, INDEMNIFY AND HOLD GEODynamics, ITS EMPLOYEES, OFFICERS, AGENTS, AFFILITAES AND SUBSIDIARIES, HARMLESS FROM AND AGAINST ALL DEMANDS, CLAIMS, SUITS, CAUSES OF ACTION, COSTS, EXPENSES AND DAMAGES THAT GEODynamics MAY AT ANY TIME SUFFER OR SUSTAIN OR BECOME LIABLE UNDER ANY LEGAL THEORY, INCLUDING WITHOUT LIMITATION, CONTRACT, WARRANTY, DECEPTIVE TRADE PRACTICE, NEGLIGENCE, PRODUCT LIABILITY AND STRICT LIABILITY IN TORT, BY REASON OF ANY ACCIDENTS, DAMAGES, OR INJURIES, EITHER TO PERSONS OR PROPERTY OR BOTH, OF BUYER, OF ANY THIRD PARTY(S), OR GEODynamics OR ANY PERSONS OR FIRMS AFFILIATED WITH GEODynamics, THAT ARISE OUT OF OR RELATE TO THE USE OR MISUSE OF ANY ITEM SOLD HEREUNDER THAT IS CAUSED BY OR RESULTS FROM THE SOLE OR CONCURRENT NEGLIGENCE OF GEODynamics, ITS OFFICERS, AGENTS, EMPLOYEES, AFFILIATES OR SUBSIDIARIES, IN THE DESIGN, MANUFACTURE, MARKETING, SALE OR DISTRIBUTION OF AN ITEM SOLD HEREUNDER. IT IS AGREED THAT BUYER’S INDEMNITY OBLIGATION UNDER THIS SUB SECTION (b) SHALL BE LIMITED TO THE SUM OF $500,000 AND SHALL BE SUPPORTED BY LIABILITY INSURANCE COVERAGE PROVIDED BY BUYER THAT IS SUFFICIENTLY ENDORSAED TO WAIVE ANY AND ALL CLAIMS BY THE UNDERWRITERS OR INSURERS AGAINST GEODynamics.
(c) NOTWITHSTANDING ANYTHING OTHERWISE CONTAINED IN THIS AGREEMENT, GEODynamics SHALL NOT BE LIABLE IN ANY AMOUNT AND BUYER WILL INDEMNIFY, DEFEND, AND HOLD GEODynamics, ITS AFFILIATES, OFFICERS, AGENTS AND EMPLOYEES HARMLESS FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, LOSS, DAMAGE OR INJURY (INCLUDING DEATH) TO PERSONS OR PROPERTY, WHETHER SUSTAINED BY BUYER OR BY ANY THIRD PARTY, INCLUDING ANY AWARDS OF PUNITTIVE OR EXEMPLARY DAMAGES, ARISING FROM BLOWOUTS, EXPLOSION RESULTING THEREFROM, LOSS OF RESERVOIR, LOSS OF THE WELL OR DOWN HOLE EQUIPMENT, POLLUTION AND SEEPAGE, COST OF CONTROL AND REMOVAL OF DEBRIS, REGARDLESS OF CAUSE, FAULT, OR ACTIVE OR PASSIVE NEGLIGENCE ON THE PART OF GEODynamics, OR LIABILITY ATTRIBUTABLE TO GEODynamics BY A RULE OF STRICT LIABILITY IN TORT OR OTHERWISE INCLUDING COSTS AND EXPENSES OF INVESTIGATION AND LITIGATION, AND ALL ATTORNEY’S FEES INCURRED IN DEFENDING ANY SUCH LIABILITY OR CLAIM.
14. U.S. EXPORT COMPLIANCE
Buyer specifically acknowledges that any items supplied to Buyer under these General Terms and Conditions may be subject to the jurisdiction of the U.S. Export Administration Regulations (“EAR”) (Title 15 of the U.S. Code of Federal Regulations Part 730 et seq.) and U.S. trade embargo regulations (Title 31 of the U.S. Code of Federal Regulations Part 500 et seq.) Accordingly, Buyer agrees, and, if applicable, shall cause each of its customers who in turn acquires items sold under these General Terms and Conditions to agree, that no item supplied or sold under these General Terms and Conditions will be: (a) re-exported, trans-shipped, sold, or otherwise transferred to any country other than the country where GEODynamics has expressly agreed to ship the item, except as may be authorized under U.S. law, and then only with the prior written authorization of GEODynamics; or (b) re-exported, trans-shipped, sold, or otherwise transferred to persons within the country where GEODynamics has expressly agreed to ship the item if such a re-exportation, trans-shipment, sale, or transfer would violate U.S. law.
GEODynamics agrees that it will, at its own expense, defend and all actions on proceedings charging infringement of any patent, copyright, trademark; or other corresponding right when those actions or proceedings are based on the Buyer’s use of the Products and such Products are used strictly within the guidelines provided by GEODynamics., GEODynamics shall indemnify the Buyer and hold it harmless from and against all claims, loss, damage, and expense, up to the amount paid by the Buyer for the Products, arising from or by reason of any actual or claimed patent, copyright or trademark, infringement, or any litigation based thereon. GEODynamics will not provide defense or indemnification for litigation arising from the manufacture or sale of any product based on a design originating with Buyer and that is made in accordance with Buyer’s specifications and drawing. GEODynamics obligation hereunder shall survive acceptance of articles delivered and payment therefore by Buyer.
If any Products (or part thereof), or use thereof, become, or in GEODynamics opinion, are likely to become the subject of an infringement Claim, GEODynamics shall:
(a) Procure for the Buyer the right to continue the use thereof, or
(b) Replace or modify the same so that it becomes non-infringing (provided the same level of functionality is maintained), or
(c) Buy back the same from Buyer at the price which it was sold.
GEODynamics shall Indemnify Buyer for any Claims arising out of the use of the infringing Product or Service prior to the date upon which GEODynamics performed any of the foregoing remedial actions. Buyer agrees to immediately notify GEODynamics of any allegation of infringement made against it or GEODynamics and cooperate in any investigation of the allegations.
16. INTELLECTUAL PROPERTY
If Buyer furnishes any specifications, requirements, designs or the like to GEODynamics for the manufacture of the Products, GEODynamics acknowledges that Buyer is and remains the sole and exclusive owner of all such specifications, requirements, designs and the like and intellectual property rights therein, to the extent that the specifications, requirements, designs or the like were not previously known to GEODynamics or to the industry, and are not industry-wide standards unless otherwise agreed in writing by an officer of GEODynamics. The Parties hereby agree that:
(a) GEODynamics is and remains, or shall be, the sole and exclusive owner of all improvements in, modifications to, and/or derivative works of, all such specifications, requirements, designs and the like, and intellectual property rights therein, which improvements, modifications and/or derivative works are made, developed, conceived or actually reduced to practice solely by GEODynamics;
(b) The Parties each agree to notify each other timely of any jointly developed improvements in, modifications to, and/or derivative works of, all such specifications, requirements, designs and the like, to enable the Parties, to determine whether to seek protection of any joint intellectual property embodied therein through patents or copyrights, as appropriate and applicable. Any Improvements, Modifications, or Derivatives of products or components to which GEODynamics holds patents, trademarks or intellectual rights, as well as products or components outside of the standard products that are developed jointly shall be subject to the terms of separately negotiated agreements between the Parties setting out terms of ownership of such Improvements, Modifications, Derivatives, or jointly developed products.
(c) The Parties further agree that each shall cause its employees, consultants, contractors and/or agents (and their employees) to execute such documents as are necessary to perfect and record the proprietary interest of the other Party in any jointly developed improvements in, modifications to, and/or derivative works of, all such specifications, requirements, designs and the like, through patents and copyrights as applicable.
(d) GEODynamics will not sell any Products, manufactured partially or completely in accordance with Buyers specifications, requirements designs or the like, without first obtaining Buyers written approval.
17. CONFLICT OF INTEREST
GEODynamics shall not give any fee, commission, rebate or other thing of value to or for the benefit of any employee or relative of an employee of Buyer’s or of Buyer’s Group, not provide or offer substantial entertainment to any such person(s), nor shall GEODynamics knowingly do business with any third party so as to benefit a member or relative of any of Buyers Party.
18. CONFIDENTIAL INFORMATION
GEODynamics agrees to keep confidential all information, not available to the public, furnished to GEODynamics by Buyer or produced at Buyer’s expense in connection with this order. Such information shall be clearly marked as “Confidential.” Any such obligation shall terminate upon the loss of confidential status of the information that occurs through no fault of GEODynamics.
Special tools, dies, molds, patterns, or other tooling either furnished by Buyer or purchased from GEODynamics by Buyer and used to produce articles involving Buyer’s confidential information shall be property of Buyer and shall keep confidential, used only for production of such articles for Buyer, and shall be promptly returned upon completion or termination of this order.
(a) All of these General Terms and Conditions including Buyer’s agreements to hold GEODynamics harmless and indemnify GEODynamics shall also apply in favor of all employees, agents, affiliates, and subsidiaries of GEODynamics.
(b) Order confirmation by GEODynamics of any item to be supplied by GEODynamics shall constitute GEODynamics offer to sell the item and Buyer’s acceptance of GEODynamics offer shall be limited to these Terms and Conditions. Neither GEODynamics commencement of performance nor delivery of any item shall be construed as or deemed to be acceptance by GEODynamics of any terms, provision or condition that varies from conflicts with, or modifies these Terms and Conditions.
(c) These Terms and Conditions constitute the entire understanding and agreement of GEODynamics and Buyer with respect to the sale of the item or items, and contain all of the covenants and agreements of GEODynamics and Buyer with respect thereof. Acceptance of the item by Buyer will evidence Buyer’s acknowledgment that no representations, inducements, promises or agreements, oral or written, have been made by GEODynamics to anyone acting on behalf of GEODynamics, which are not contained herein, and any prior agreements, promises, negotiations, or representations not expressly set forth in these Terms and Conditions are no force or effect. These Terms and Conditions may not be altered, changed or amended except by an instrument in writing signed by GEODynamics and Buyer.
(d) Failure by GEODynamics to enforce any or all of these Terms and Conditions in any case or cases shall not constitute a waiver of or preclude subsequent enforcement of any or all of such Terms and Conditions, unless such waiver or release is in writing and signed by the Parties. In addition, the waiver by any Party of any breach or default hereunder shall not be deemed to constitute a waiver of any succeeding or preexisting breach or default.
(e) Any attempted or purported assignment or transfer of any of the rights, duties or obligations herein contained shall render such attempted or purported assignment or transfer null and void, provided that GEODynamics may perform and fulfill all or any of its obligations hereunder by or through any subsidiary and affiliate.
Buyer acknowledges “GEODynamics” is a registered trademark and it can only use this and other GEODynamics Registered and unregistered trademarks with GEODynamics permission and shall be noted as GEOynamics trademarks.. (Connex® , Razor Perforating ® , Technik Solutions ®,, SmartStart™, iPerf® , Excape ®and others so identified are the property of GEODynamics).