1. TERMS AND CONDITIONS. These Terms and Conditions of Purchase apply to all orders by the buyer (“Buyer”) for goods, materials, equipment, and/or services (the "Goods”) to be provided by the seller (“Seller”). The TWMA entity (which includes Dynamic Oilfield Services doing business as TWMA USA) that places the order shall be the “Buyer”. Contract formation and acceptance by Buyer are expressly conditioned upon Seller’s agreement to the terms of these Terms and Conditions of Purchase.
2. ORDERS. Buyer may place orders (each a “Purchase Order”) with Seller by issuing an ordering document that refers to these Terms and Conditions of Purchase. Each Purchase Order placed by a Buyer with Seller, together with these Terms and Conditions of Purchase constitutes an offer by Buyer to purchase the Goods from Seller upon the express terms of the Purchase Order and these Terms and Conditions of Purchase, which upon acceptance by Seller shall constitute a separate contract by and between Buyer and Seller (each an “Agreement”). Each Agreement constitutes the entire agreement with respect to the subject matter thereof between Seller and Buyer and may not be added to or varied except by a writing signed by both parties. Buyer expressly objects to and shall not otherwise be bound by any additional or different terms, whether printed or otherwise, in any order acknowledgements, invoices or any other document or communication from Seller. Buyer reserves the right to make changes in (1) the specifications for any Goods; (2) the method of shipment or packaging; (3) the place and time of performance; and (4) the articles and materials, including the quantity thereof, to be furnished by the Seller (each a “Change”). If any such Change cause an increase or decrease in the cost of, or the time required for performance of a Purchase Order, an equitable adjustment shall be made in the contract price or performance schedule, or both, by mutual agreement. Any request by Seller to adjust the terms of any applicable Purchase Order as a result of a Change must be submitted to Buyer in writing within thirty (30) days from the date Seller receives notice of the Change.
3. DELIVERY DATE. Time is of the essence for each Agreement. Seller acknowledges that Buyer’s production schedules are based upon the agreement that the Goods ordered will be delivered by the date(s) specified in the Purchase Order. Seller shall notify Buyer if the Goods will not be delivered by the required date as soon as Seller makes such determination. Seller will be liable for all losses, costs, damages and liabilities suffered or incurred by Buyer as a result of Seller’s failure to deliver the Goods in accordance with the Purchase Order.
4. DELIVERY. All sales are FOB to the destination specified by Buyer in the Purchase Order or other destination as may be provided by Buyer. Any deviation must be approved in writing by Buyer prior to shipment. Shipments must be in exact amounts and separate loads or partial loads are not permitted unless otherwise agreed to in writing by Buyer in advance. Buyer’s count of the amounts in any shipment shall be accepted as correct. Any premium cost incurred to expedite delivery or for late deliveries will be at the sole cost and expense of Seller. Any deviation from Buyer’s shipping instructions shall be made at the sole cost and expense of Seller. The risk of loss and title with respect to the Goods (including transportation delays and losses) shall pass to Buyer upon delivery of the Goods by Seller to Buyer. No loss, injury or destruction of the Goods prior to their deliver to Buyer shall release Seller from any obligations with respect to the Goods (including, without limitation, Seller’s obligation to timely deliver and/or replace the Goods).
5. INSPECTION. Buyer reserves the right to inspect and test any and all Goods provided for in any Purchase Order at any time (including the period of manufacture) and at any location (including Seller’s premises). Seller shall provide Buyer’s inspectors reasonable access to all facilities. The foregoing shall not release Seller from its obligation to adequately test and inspect the Goods, nor shall the foregoing relieve Seller from its obligation to furnish Goods which conform to all contractual requirements and are free from defect. Notwithstanding prior inspection or payment for Goods, all Goods are subject to final inspection and acceptance upon delivery.
6. PACKING AND SHIPPING. Seller shall suitably pack, mark and ship all Goods in accordance with the requirements of common carriers and in a manner which will assure arrival of Goods in a safe and undamaged condition. No additional fee for packing, shipping or delivery shall be charged by Seller unless otherwise stated in the Purchase Order or in a signed writing agreed to by Buyer. Each package or container delivered must be appropriately marked to show the Purchase Order number and must include a packing list.
7. DOCUMENTATION REQUIRED. With respect to each Purchase Order and each delivery, as applicable, hereunder Seller shall provide Buyer the following: (a) acknowledgement copy of the Purchase Order within 4 days of the date of the Purchase Order; and if applicable (b) invoice in triplicate; (c) Bill of Lading; (d) mill test reports or material certificates as specified in the Purchase Order in triplicate; and (e) such other documentation as may be reasonably requested by Buyer from time to time. Payment for the Goods shall not be due until Buyer has received the necessary documentation.
8. TAXES, FREIGHT, INSURANCE. Unless set forth in the Purchase Order or required by law, Seller assumes exclusive liability for, and shall pay before delinquency, all sales, use, duties, value added, excise, payroll, FICA, unemployment and other taxes, charges or contributions of any kind now or hereafter imposed on, with respect to, or measured by the articles sold or materials or work supplied hereunder or the wages, salaries, or other remunerations paid to persons employed in connection with the performance of the Agreement. Seller shall also be responsible for all freight, insurance, packing, crating, handling, shipping and all other incidental charges, expenses and costs incident to delivery to Buyer. No additional charge may be made therefor unless agreed to in writing by Buyer in advance.
9. PRICE AND PAYMENT. The price appearing on the face of this Purchase Order shall be the entire price to Buyer unless otherwise agreed in writing. If a price term is not stated, the price shall be the lower of the last price quoted to Buyer at the time of shipment or the prevailing market rate at the time of shipment. Unless otherwise agreed, payment will be made within a commercially reasonable time after Buyer’s receipt of Seller’s invoice and such related and supporting documentation Buyer may reasonably require. Any cash discount shall be calculated from the later of the date of receipt of the invoice or acceptance of the Goods.
10. TERMINATION. Buyer may, at its option, terminate any Agreement or Purchase Order, in whole or in part, upon providing written notice to Seller. Any conforming deliveries made prior to the effective date of such termination shall be controlled and governed by the Agreement. In addition, if Seller or any subcontractor (i) breaches any provision of the Agreement, (ii) files a voluntary petition in bankruptcy, (iii) makes a general assignment for the benefit of its creditors, (iv) suffers or permits the appointment of a trustee or receiver for its business assets, (v) becomes subject to any proceeding under any bankruptcy or insolvency law which is either consented to by such other party or is not dismissed within ninety (90) days, (vi) initiates actions to wind up or liquidate its business voluntarily or otherwise, (vii) ceases doing business in the ordinary course, or (viii) anything analogous to any of the events described in this sentence occurs under the laws of any applicable jurisdiction, Buyer shall have the right (without limiting any other rights or remedies which it may have hereunder or by operation of law) to terminate any and all Purchase Orders by written notice to Seller whereupon Buyer shall be relieved of all further obligation hereunder except the obligation to pay the reasonable value of Seller’s prior performance (not exceeding the Purchase Order rate), and Seller shall be liable to Buyer for all costs incurred by Buyer in completing or procuring the completion of performance in excess of the applicable Purchase Order price. Buyer’s right to require strict performance of any obligation hereunder shall not be affected by any previous waiver, forbearance or course of dealing.
11. WARRANTIES.
    1. (a) Seller warrants that all Goods will conform to the specifications, drawings, samples or other description furnished or specified by Buyer, or contained in the applicable Purchase Order, and will be of good material and workmanship, free from defect, merchantable, and fit for their intended purpose. Seller will, at Seller’s sole expense and to the reasonable satisfaction of Buyer, promptly repair or replace any defective or non-conforming Goods, or, at Buyer’s option, promptly refund to Buyer all monies paid by Buyer for the defective or non-conforming Goods, including any freight, upon the return of the Goods to Seller. This warranty shall be in addition to any other warranties expressed or implied by law as well as any standard warranty or guarantee made by Seller with respect to the Goods. In addition, if any Goods furnished are subject to one or more third-party manufacturer’s warranties, Seller hereby assigns such warranties to Buyer and shall use its best efforts to assist Buyer in receiving the benefits of such manufacturer’s warranties.
    2. (b) Seller warrants that all services will be in accordance with the Purchase Order or other specifications provided by Buyer and will be performed in a good and workmanlike manner. Seller will, at Seller’s sole expense and to the reasonable satisfaction of Buyer, promptly correct or re-perform any non-conforming services, or, at Buyer’s option, promptly refund to Buyer that portion of the consideration that is attributable to the non-conforming services. If Seller fails to promptly commence or complete performance of the services, including correcting or re-performing any non-conforming services, Buyer shall have the right to have the nonconforming service performed by other means and Seller will be responsible for all reasonable costs incurred by Buyer in doing so.
    3. (c) The warranties contained in this section will survive any inspection, test, acceptance and/or payment for the Goods or services and shall run to Buyer, its successors, assigns, customers and all users of its products.
    4. (d) Seller warrants that all Goods furnished hereunder and the normal use and sale thereof (including, without limitation, the manufacture, use and sale of products incorporating such Goods), do not infringe, dilute, misappropriate or otherwise violate any patent, copyright, or trademark or other intellectual property right of any third party.
    5. (e) The provisions of this Section 11 shall be in addition to any rights or remedies provided by law or under the Agreement, including Buyer’s right to terminate the applicable Purchase Order.
12. CONFIDENTIALITY. Seller agrees that any and all drawings, specifications, processes, reports, data and other technical or proprietary information of Buyer or its affiliates (“Confidential Information”) that is disclosed to or received by Seller (i) shall be treated as Buyer’s confidential, proprietary and trade secret information (with Buyer reserving all rights to its Confidential Information); (ii) shall be held by Seller in strict confidence, (iii) shall be used by Seller only for purposes of the applicable Agreement, and (iv) that no Confidential Information, including without limitation the provisions of the Agreement, shall be disclosed by Seller without the prior written consent of Buyer. Seller shall safeguard Buyer’s Confidential Information with at least the same degree of care (which shall always be at least a reasonable amount of care) that it uses to safeguard its own confidential, proprietary, and trade secret information. Upon demand by Buyer all such Confidential Information and any copies thereof shall immediately be returned to Buyer.
13. INDEMNIFICATION.
    1. (a) Seller agrees to release, defend, indemnify and hold harmless Buyer, its parent and affiliated companies, its and their directors, managers, or members (as applicable), its and their officers, employees, and the customers, agents, successors and assigns of the foregoing (“Buyer Group”) from and against any and all actions, claims, costs (including without limitation, costs of investigation, litigation, and court costs), damages, demands, fines, interest, judgments, liabilities, losses, penalties, proceedings, suits (including appeal), and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, "Claims") that are brought by or on behalf of any person or entity, that arise out of, relate to, or are connected with an Agreement or the performance thereof, including without limitation, Claims alleging: (i) subject to Section 13(b) below, the personal injury, bodily injury, illness, or death of any person; (ii) subject to Section 13 (b) below, damage to, loss of, or loss of use of any property; (iii) non-compliance with any provision of an Agreement; (iv) violation of any governmental laws, regulations, ordinances, permits, licenses, or orders; or (v) that the Buyer Group’s use or possession of the Goods infringes, dilutes, misappropriates, or otherwise violates the copyright, trade secret, trademark, trade dress, service mark, patent or any other proprietary right (including without limitation, moral, termination, privacy, or personality rights) of any person or entity.
    2. (b) In the event either the Texas or Louisiana oilfield anti-indemnity statute is applicable to any services provided by Seller the Oilfield Indemnification Addendum attached hereto shall apply (and clause (i) and (ii) of Section 13(a) above shall not apply.
    3. (c) THE OBLIGATIONS TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS CONTAINED IN THIS SECTION 13 SHALL APPLY EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE JOINT, SOLE, OR CONCURRENT NEGLIGENCE, PRE-EXISTING CONDITIONS, STRICT LIABILITY, CONTRACTUAL LIABILITY TO OTHER MEMBERS OF THE INDEMNIFIED PARTY’S GROUP OR OTHER FAULT, WHETHER PASSIVE OR ACTIVE, OF ANY PERSON OR ENTITY, INCLUDING BUT NOT LIMITED TO THE INDEMNIFIED PARTY’S GROUP, BUT NOT TO THE EXTENT CAUSED BY OR RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY MEMBER OF THE INDEMNIFIED PARTY’S GROUP.
14. LIMITATION OF LIABILITY.
    EXCEPT FOR BUYER’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL BUYER OR BUYER GROUP HAVE ANY LIABILITY TO SELLER FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSSES INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSSES FOR LOST PRODUCTION, LOST REVENUE, LOST PRODUCT, LOST PROFITS, LOST BUSINESS OR BUSINESS INTERRUPTIONS, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER UNDER ANY AGREEMENT FOR ANY AMOUNT IN EXCESS OF THE PURCHASE PRICE OF THE GOODS COVERED BY OR SUBJECT TO SUCH AGREEMENT, REGARDLESS OF LEGAL THEORY.
15. GENERAL PROVISIONS:
    1. (a) Notice. Any notices shall be deemed effective and delivered three days after mailing if sent certified mail, return receipt requested, or when received if sent by fax, prepaid courier, express mail or personal delivery to the intended recipient thereof at the address specified by the applicable party.
    2. (b) Independent Contractor. Seller, in providing the Goods hereunder, is acting as an independent contractor and neither Seller nor any of Seller’s personnel shall be deemed for any purpose to be the employee, agent or representative of Buyer. Neither Seller nor Seller’s personnel will have any authority to bind Buyer to any third party without specific written authority from Buyer.
    3. (c) Governing Law/Arbitration. The validity, performance, and construction of each Agreement shall be governed by the laws of the State of Texas (excluding its conflict of laws rules which would refer to and apply the substantive laws of another jurisdiction). Any controversy or claim arising out of or relating to an Agreement shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules as presently in effect.  If the amount of the claim or controversy exceeds $100,000 USD, the arbitration shall be heard by three arbitrators appointed in accordance with the rules.  The seat of the arbitration is Houston, Texas.  The award rendered by the arbitrator(s) may be enforced in any court having jurisdiction thereof. This United Nations Convention on Contracts for the International Sale of Goods shall apply to any Agreement.
    4. (d) Severability. If any provision of an Agreement is held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of such Agreement, and such Agreement will be construed as if such invalid or unenforceable provision were omitted.
    5. (e) Survival. The provisions of these Terms and Conditions of Purchase which by their nature are intended to survive the termination of an Agreement shall survive the expiration or other termination of such Agreement.
    6. (f) Assignment. Buyer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Seller. Any assignment made in contravention of this Section 15 (f) shall be null and void for all purposes.
    7. (g) Compliance with Laws. Each party hereto agrees to comply with all federal, state, and local laws, rules, and regulations in effect in the United States of America and any other country or territory in respect of their activities contemplated by an Agreement, including without limitation the United States Foreign Corrupt Practices Act.

Oilfield Indemnification Addendum

In the event either the Texas or Louisiana oilfield anti-indemnity statute is applicable to any services provided by Seller the following shall apply (and clause (i) and (ii) of Section 13(a) above shall not apply):

1. Subject to Section 7 below, Buyer shall release, defend; indemnify and hold harmless Seller and each of its respective officers, directors, and employees (collectively, the "Seller Group") from and against any and all Claims of whatsoever kind or character that are brought by or on behalf of any member of the Buyer Group alleging bodily injury, illness, or death of any member of the Buyer Group or their invitees (except for Seller) which arise out of, relate to, or are connected with an Agreement or the performance thereof.
2. Subject to Section 7 below, Buyer shall release, defend; indemnify and hold harmless Seller Group from and against any and all Claims of whatsoever kind or character that are brought by or on behalf of any member of the Buyer Group or that result from physical damage to, loss of, or loss of use of any tangible property of Buyer Group or their invitees (except for Seller), and which arise out of, relate to, or are connected with an Agreement or the performance thereof.
3. Subject to Section 7 below, Seller shall release, defend; indemnify and hold harmless Buyer Group from and against any and all Claims that are brought by or on behalf of any member of the Seller Group, alleging bodily injury, illness, or death of any member of the Seller Group or their invitees which arise out of, relate to, or are connected with an Agreement or the performance thereof.
4. Subject to Section 7 below, Seller shall release, defend; indemnify and hold harmless Buyer Group from and against any and all Claims that are brought by or on behalf of any member of the Seller Group, that result from physical damage to, loss of, or loss of use of any tangible property of Seller Group or their invitees, and which arise out of, relate to, or are connected with an Agreement or the performance thereof.
5. Separate and independent from any other insurance procurement requirements in an Agreement, each party agrees to carry insurance in support of their respective indemnity obligations under this addendum in mutually-agreed, equal amounts. If a party does not carry or fails to maintain insurance as mutually agreed, such party will be deemed to be self-insured in an amount equal to the amount of insurance carried by the other party in compliance with this addendum.
6. THE OBLIGATIONS TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS CONTAINED IN THIS ADDENDUM SHALL APPLY EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE JOINT, SOLE, OR CONCURRENT NEGLIGENCE, PRE-EXISTING CONDITIONS, STRICT LIABILITY, CONTRACTUAL LIABILITY TO OTHER MEMBERS OF THE INDEMNIFIED PARTY’S GROUP OR OTHER FAULT, WHETHER PASSIVE OR ACTIVE, OF ANY PERSON OR ENTITY, INCLUDING BUT NOT LIMITED TO THE INDEMNIFIED PARTY’S GROUP, BUT NOT TO THE EXTENT CAUSED BY OR RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY MEMBER OF THE INDEMNIFIED PARTY’S GROUP.
7. Insofar as services to be performed or rendered under an Agreement is subject to the Louisiana Oilfield Indemnity Act, La. R.S. 9: 2780, each party will submit an invoice to the other party for, and such other party will pay, the additional cost to the party for waiving subrogation as to the other party’s Group and naming the other party’s Group as additional insureds under the insurance coverage provided by the party for such services and products provided under the relevant Agreement, and for providing that such coverage shall be primary and shall receive no contribution from insurance policies maintained by the other party’s Group, assuming the party incurs a charge for the above prescribed provisions. Each party shall include evidence of such additional charge from its insurance provider with its invoice submitted to the other party. Such cost paid by the other party shall be in addition to the other amounts due under such Agreement.