1. GENERAL
The sale of goods and/or provision of services by EPCO SOLUTIONS INC., hereinafter referred to as EPCO are subject to the following Standard Terms and Conditions of Sale. The purchaser of the goods and services shall be hereinafter referred to as PURCHASER. Upon the date of EPCO receipt of PURCHASER’s written acceptance of EPCO’s offer, PURCHASER and EPCO shall be deemed on such date to have entered into a legally binding and enforceable agreement for the purchase and sale of the goods and services described therein and, together with these Standard Terms and Conditions of Sale, shall constitute the “Agreement”. As to PURCHASER and EPCO, respectively, “Related Parties” shall mean such party’s parent, subsidiary and affiliated entities, and all of their respective officers, directors, managers, employees, agents, contractors, and designees.
NOTWITHSTANDING THE TERMS AND CONDITIONS CONTAINED IN ANY OTHER AGREEMENT, NO TERMS AND CONDITIONS CONTAINED IN ANY PURCHASE ORDER PLACED WITH EPCO, OTHER THAN THOSE STATED HEREIN, SHALL BE BINDING ON EPCO, UNLESS HEREAFTER MADE IN WRITING, SPECIFICALLY REFERRING TO THE MODIFIED TERMS AND CONDITIONS AND SIGNED BY AN AUTHORIZED OFFICER OF EPCO. IN ALL OTHER EVENTS THESE STANDARD TERMS AND CONDITIONS OF SALE SHALL GOVERN ANY PURCHASE ORDER PLACED WITH EPCO. ANY ADDITIONAL, DIFFERENT, INCONSISTENT OR CONFLICTING TERMS OR CONDITIONS CONTAINED IN PURCHASER’S PURCHASE ORDER FORM SHALL NOT OPERATE AS A REJECTION OF THESE TERMS AND CONDITIONS OF SALE BUT SHALL CONSTITUTE A MATERIAL ALTERATION THAT EPCO HEREBY REJECTS, AND THESE TERMS AND CONDITIONS OF SALE SHALL BE DEEMED ACCEPTED WITHOUT SUCH ADDITIONAL, DIFFERENT, INCONSISTENT OR CONFLICTING TERMS OR CONDITIONS.
THESE STANDARD TERMS AND CONDITIONS OF SALE WILL SUPERSEDE AND GOVERN ALL AGREEMENTS BETWEEN THE PARTIES RELATIVE TO THIS TRANSACTION, AND THERE IS NO AGREEMENT COLLATERAL HERETO (WHETHER ENTERED INTO BEFORE OR AFTER THE PURCHASE ORDER IS PLACED WITH EPCO) OR ANY REPRESENTATION OR WARRANTY WHICH SHALL BE BINDING UPON EPCO UNLESS SIGNED BY AN AUTHORIZED OFFICER OF EPCO.
2. PURCHASER ACKNOWLEDGEMENT
EPCO reserves the right to require an authorized representative of the PURCHASER to provide to EPCO such written evidence as an authorized representative of EPCO may reasonably require acknowledging to PURCHASER’s acceptance of these Standard Terms and Conditions of Sale. Notwithstanding that no such written evidence is provided, these Standard Terms and Conditions of Sale shall constitute part of the Agreement.
3. VALIDITY
EPCO’s quoted prices for goods and services are valid only for the time period stated in EPCO’s written quotation.
4. DELIVERY OF GOODS
EPCO’s goods and services are supplied in accordance with INCOTERMS 2020, and risk of loss shall pass accordingly. Title to the goods shall pass at the same time that risk passes to the BUYER. EPCO has sole discretion to determine the factory location for the provision of the goods and services. Actual delivery time will be subject to availability of manufacturing capacity at the date of the Agreement. Claims for any damage, shortage or loss in transit of goods supplied by EPCO must be made by PURCHASER to the carrier.
5. PAYMENT TERMS
Unless otherwise specified in the Agreement the following shall apply:
EPCO may require deposits, letters of credit or down payments at time of placement of order as specified in the Agreement. No interest or other amounts will be required to be accrued or paid by EPCO to PURCHASER in connection with such advance payments. All deposits are considered nonrefundable unless order is cancelled by PURCHASER within one (1) week of the date of the Agreement.
All letters of credit will be irrevocable, confirmed and drawn against a banking facility pre-approved by the EPCO. All letter of credit charges are responsibility of PURCHASER.
PURCHASER agrees to pay all applicable taxes.
EPCO SOLUTIONS Standard Terms and Conditions of Sale https://www.epcosolutions.net
Payment in full is required prior to delivery of goods or provision of services by EPCO. Payments are to be made by wire transfer unless otherwise indicated in the Agreement.
In the event credit is applied for and granted to PURCHASER, terms and credit limits shall be established in the Agreement. All amounts beyond set credit limits will be paid in full by PURCHASER prior to delivery. Payments for amounts within set credit limits are due in full from PURCHASER within thirty (30) days from the date goods are shipped or services are provided by EPCO, without setoff or deduction for any reason whatsoever.
6. REMEDY FOR FAILURE TO PAY
If the full payment is not received by EPCO within thirty (30) days after (i) notification of availability of goods for shipment or (ii) invoice for payment is sent by EPCO, EPCO may, in its sole discretion, charge interest at the rate of 18% per annum on unpaid amounts, calculated and compounded monthly, not in advance, until paid in full. The PURCHASER also agrees to pay all reasonable legal expenses and agency commissions sustained by EPCO in pursuit of any payment which is past due, on a full indemnity basis. The remaining balance, plus all accrued interest, must be paid before EPCO will ship any goods or provide any services to PURCHASER. Should PURCHASER fail to deliver the remaining payment balance owed, plus the accrued interest within ninety (90) days after notification, EPCO reserves the right to sell the goods and seek any and all damages.
7. CANCELLATION
Should PURCHASER cancel its order with EPCO within one (1) week following the date of the Agreement, EPCO will refund any deposit or down payment. If PURCHASER cancels its order after one (1) week following the date of the Agreement, PURCHASER agrees that EPCO may retain all, or any portion thereof, of the deposit or down payment based upon the material and labor utilized to the time of cancellation as determined by EPCO in its sole discretion. EPCO shall invoice for any cancellation, and the PURCHASER will pay EPCO’s invoice within thirty (30) days from date of cancellation, plus all reasonable cancellation charges due to the EPCO for an amount not to exceed 100% of the total quoted purchase price based upon material and labor utilized up to the time of cancellation.
8. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performance under the Agreement (other than for delay in the payment of any amount due and payable including accrued interest prior to the date of the Force Majeure, as hereafter defined, and other than indemnification obligations) to the extent such failure or delay is caused by reasons of force majeure beyond that party’s reasonable control (“Force Majeure”) including, but not limited to, the occurrence of natural disasters such as earthquakes, tornados, hurricanes and floods, the occurrence of war, riot, acts of terrorism or other major upheaval, pandemics, endemics, the imposition of trade sanctions or trade embargoes (including denied and sanctioned parties), labor disputes, material shortages, the failure of suppliers, subcontractors, and carriers, and/or other necessary parties to substantially meet that party’s performance obligations under the Agreement.
As a condition precedent to the non-performing party’s claim of Force Majeure, the non-performing party must give written notice to the other party, within five (5) days after the Force Majeure, and provide complete details in respect of the occurrence of the cause relied upon to excuse performance. The dates by which performance obligations are scheduledto be met will be extended for that period of time which is equal to the time lost due to any delay caused by the Force Majeure. If a Force Majeure event occurs while EPCO is providing service work at a PURCHASER location, then EPCO will be paid at its then applicable technician stand-by rates during any such Force Majeure event. EPCO shall submit its invoice for the payment of such charges which shall be paid within thirty (30) days from the date of such invoice. The failure to pay for such charge shall release EPCO from any further performance obligation under the Agreement.
If the Force Majeure event extends for a period of more than forty-five (45) days, EPCO has the right to terminate the Agreement and cancel the order and in that event, EPCO will refund any deposit or down payment after deducting the expenses that have been incurred by EPCO up to the date of receipt of notice by EPCO of the Force Majeure event, as determined by EPCO in its sole discretion.
9. LIMITED WARRANTY
Unless otherwise specified in writing in the Agreement, EPCO warrants its goods to be free from defects in materials and workmanship for a period of 365 days from date of shipment from EPCO’s factory location. Should any part of such goods be found, under normal use and service during the warranty period to be defective, EPCO will repair or replace such goods at its factory location, provided (i) that EPCO receives written notice of the defective product or part within the warranty period, (ii) such defective product or part is returned to that location by the PURCHASER on a prepaid freight basis no later than thirty (30) days after the expiration of the warranty period,
(iii) that the EPCO return material authorization number, invoice number and PURCHASER’S purchase order number are noted on the shipping container and (iv) that inspection of the original goods establishes the claim defect to the satisfaction of EPCO in its sole discretion.
EPCO provides no warranty with respect to components manufactured by others which are subject to the warranties of their respective manufacturers that are used in EPCO’s goods or sold by EPCO. Should any such component, provided by EPCO, fail within the manufacturer’s warranty period, such component must be returned to EPCO by the PURCHASER on a prepaid freight basis in accordance with EPCO’s return policy (section 12 below) so it can be returned to the original component manufacturer’s facility for evaluation and disposition.
Any good that is repaired by EPCO is warranted to be free from defects in materials and workmanship for a period of ninety (90) days from the date of completion of repair or the remaining portion of the original warranty, whichever is longer.
No warranty shall apply (i) to goods upon which repairs or alterations have been made (unless authorized by EPCO), (ii) for goods misused, neglected and/or incorrectly installed, stored or operated or (iii) to goods which have not been operated or maintained by demonstrably competent personnel.
On-site warranty service may be provided by EPCO upon request by PURCHASER, and subject to conditions contained in section 10 below, during the original warranty period for EPCO’s goods which cannot be returned by the PURCHASER to EPCO’S designated service location due to logistical or financial reasons acceptable to EPCO. PURCHASER will be responsible for all normal travel and living expenses incurred by EPCO’s technicians during any warranty service call and all costs associated with the transportation, taxes, duties and importation costs of all replacement components. PURCHASER will also be responsible for the transportation, importation and exportation expenses associated with any special tools required for this warranty work. PURCHASER will not be responsible for daily service charges associated with on-site repairs which are determined by EPCO to be a covered warranty defect. Daily service charges for repairs determined by EPCO to be the result of misuse, neglect, modification or incorrect installation or operation will be the responsibility of PURCHASER.
EPCO’s total liability and PURCHASER’s sole remedy under this warranty is limited to such repair or replacement subject to the conditions stated herein, and no allowance will be made for repairs, replacements and/or alterations unless made with EPCO’s prior written approval. THE WARRANTIES CONTAINED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES, AND EPCO HEREBY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. EPCO DOES NOT WARRANT THAT ANY SOFTWARE, MEDIA, INTELLECTUAL PROPERTY OR RELATED DOCUMENTATION IS ERROR FREE, ANY ERRORS THEREIN WILL BE CORRECTED, IDENTIFIES ALL KNOWN VIRUSES, IS NON-INFRINGING, ADEQUATE TO PRODUCE ANY PARTICULAR RESULT, WILL MEET PURCHASER’S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, WILL BE COMPATIBLE WITH ANY HARDWARE SOFTWARE, SYSTEMS OR SERVICES, OR WILL BE SECURE, ACCURATE, COMPLETE OR FREE OF HARMFUL CODE OR CHARACTERISTICS THAT MAY MAKE IT VULNERABLE TO CYBER-ATTACK OR DATA BREACH. ALL SOFTWARE, MEDIA, INTELLECTUAL PROPERTY AND RELATED DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS, AND EPCO SHALL NOT BE LIABLE FOR LOSS OR DAMAGE ARISING FROM THE USE THEREOF BY PURCHASER. IN NO EVENT SHALL EPCO BE LIABLE FOR ANY DECISION MADE OR ACTION TAKEN OR OMITTED BY PURCHASER IN RELIANCE ON ANY SOFTWARE, OR INFORMATION PROVIDED WITH OR BY THE SOFTWARE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE, AND ANY DECISION TO USE THE SOFTWARE OR ANY UPDATES, IS SOLELY WITH PURCHASER. EPCO DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, SOFTWARE, MEDIA INTELLECTUAL PROPERTY AND DOCUMENTATION.
10. FIELD SERVICE SUPPORT
EPCO may provide qualified technicians to provide field service support for final installation, commissioning, training and required service regardless of whether such work is determined by EPCO to be warranty work. EPCO reserves the right to decline to provide field service support upon request if qualified technicians are unavailable or if logistical issues and/or if geopolitical situations may, in EPCO’s discretion, jeopardize the personal safety of EPCO’s personnel. When technicians are dispatched to provide field service support, PURCHASER agrees to provide a purchase order for the amount of the estimated service costs, paid within thirty
(30) days from invoice, in respect of all EPCO’s charges, including the prevailing daily service charges, mileage charges, normal travel and living expenses from the time that EPCO’s technician leaves EPCO’s designated point of origin until the time that the technicians return to the point of origin. All such charges which exceed PURCHASER’s approved available credit limit at the time of any field service call, must be prepaid to EPCO by PURCHASER before mobilization.EPCO shall have no obligation to supply such technician until such charges are paid, unless alternative terms or credit limits determined by EPCO are established. Any parts which are deemed by EPCO’s technicians to be defective in material or workmanship will be provided free of charge to PURCHASER during the warranty term as stated above; however, PURCHASER will be responsible for all transportation and importation costs associated with these components. Reimbursement to PURCHASER by EPCO for any excess prepaid costs, or for costs of parts replaced under warranty, will be made to PURCHASER within thirty (30) days from the date of EPCO’s technician return to EPCO’s designated point of origin or the date of receipt of the defective parts in the EPCO’s designated location, whichever is later.
When EPCO provides field services support for final installation, commissioning and training PURCHASER’S personnel for certain goods (including bucking units), PURCHASER will be responsible for providing utilities, materials and labor to prepare the site for installation and pre-install goods in accordance with EPCO’s written requirements. Failure of PURCHASER to complete these responsibilities prior to the arrival of EPCO’s service personnel will result in additional charges and/or delays in completion of final installation and commissioning. If required, PURCHASER is to provide a technical translator familiar with the English language and in particular, familiar with oilfield industrial or transportation terminology to facilitate this process. Should the stay of EPCO’s service personnel be extended as a result of causes beyond the control of EPCO or EPCO’s personnel, PURCHASER agrees to reimburse EPCO for those documented expenses in excess of the pre-paid estimated or approved available credit limit amount within fourteen (14) days from invoice. EPCO may, in its sole discretion, charge interest at the rate of 18% per annum on unpaid amounts, calculated and compounded monthly, not in advance until paid in full. PURCHASER also agrees to pay all reasonable legal expenses and agency commissions sustained by EPCO in pursuit of any payment which is past due, on a full indemnity basis.
11. PORTAL TERMS OF SERVICE
Access to EPCO’s PORTAL Services is subject to these terms and conditions. The Services are as described in the purchase order approved by EPCO or invoice issued by EPCO. “Services” means the software-as-a-service supplied by EPCO under this Agreement, including access to data hosting, and any online portal and related features and functionality. “Customer Data” means CUSTOMER-specific data displayed to the CUSTOMER’s users through the Services.
11.1. ACCESS
In consideration of payment of the applicable fees, EPCO hereby grants to CUSTOMER a nonexclusive, non- sublicensable, non-assignable, and nontransferable right to access and use the Services as permitted by the purchase order approved by EPCO or invoice issued by EPCO. Access is granted only to CUSTOMER and not to any Related Parties, unless specified in the purchase order approved by MCCOY or invoice issued by EPCO. The CUSTOMER must conform with any user account authorization, logins or access credentialing required by EPCO.
11.2. DATA, USE RESTRICTIONS AND PRIVACY
(a) As part of the use of the Services, CUSTOMER may create, access and download Customer Data. Customer may export or download the Customer Data at any time. CUSTOMER is responsible to maintain an archive or backup of its Cust Customer Data. EPCO does not provide disaster-recovery, data backup or archive services as part of the Services.
(b) Some or all of the elements of the Customer Data may be based on information collected from data acquisition systems, some of which may be wholly or partially based on third-party information and/or userdefined settings. While EPCO will use reasonable diligence to ensure such information is complete and accurate, EPCO’s personnel do not monitor information acquisition systems for completeness or accuracy.
(c) As a further part of the Services, EPCO may provide CUSTOMER with interpretations of information collected through the Services or other data-collection systems. CUSTOMER understands and acknowledges that Customer Data (including any such interpretations, whether provided by EPCO personnel from time to time or generated automatically through software algorithms) is for CUSTOMER to assess and verify prior to use. CUSTOMER may choose to rely upon Customer Data, or the accuracy of any such interpretations or information, all at CUSTOMER’s own risk. EPCO makes no warranty whatsoever with respect to the accuracy or completeness of the Customer Data, or related interpretations or information, and shall not be responsible for CUSTOMER’s or Related Party’s use of said Customer Data by CUSTOMER.
(d) CUSTOMER agrees that it does not obtain rights to make unauthorized copies of the Services, or any part thereof, or to modify, duplicate or reverse-engineer such items. CUSTOMER shall not translate, decompile, nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Services supplied under this Agreement, or adapt the Services in any way to create a derivative work, during the term of this Agreement or thereafter. CUSTOMER shall not distribute, sell, lease, transfer, assign, trade, rent, lease or lend the Services or publish, license, sublicense or cross-license the same or frame or distribute screen shots to others.
(e) If CUSTOMER provides personal information to EPCO, CUSTOMER agrees to obtain all necessary consents in relation to personal information and EPCO agrees to comply with applicable privacy and data protection laws. Any personal information handling practices are subject to EPCO’s Privacy Policy.
(f) Notwithstanding anything to the contrary in this Section 3, EPCO may collect, aggregate and anonymize information or data input or collected through the Services, for the purpose of purpose of statistical analysis, data analytics, research, product improvement, benchmarking, and for other business purposes, subject to the following:
(i) All aggregated data will be stripped of identifiers (such as specific users, corporate or business names or serial numbers) that would identify specifics about individual users;
(ii) Aggregated data will not be traceable back to any specific users; and
(iii) EPCO shall have rights hereunder to use, dispose of and own such anonymized and aggregated data at its discretion whether during or after the term of this Agreement.
11.3. TECHNICAL MATTERS AND SUPPORT
CUSTOMER grants permission to EPCO and its authorized service providers to access Customer Data and any personal information supplied by CUSTOMER’s users for the purpose of providing technical support. For optimal use, CUSTOMER must use the appropriate software and hardware system capabilities according to system requirements, technical standards and specifications stipulated by EPCO from time to time. CUSTOMER will be responsible for its own laptops, computers, internet access charges and mobile devices to enable certain functionality of the Services. EPCO shall bear no liability or otherwise be responsible for delays in the provision of the Services occasioned by CUSTOMER’s failure to meet those technical requirements. If technical support, onboarding services, training or other required services are provided, EPCO’s responsibility for support is explicitly limited to the Services and does not include support, troubleshooting or maintenance for the hardware or software of third parties, platform vendors or others. Any such additional services will be subject to EPCO’s support terms.
12. RETURNS
EPCO’s return policy is independent from EPCO’s warranty and service policies. EPCO must authorize, in writing, any returns before any return will be considered by EPCO for any refund. Goods returned without prior written authorization by EPCO will not be accepted. EPCO return material authorization number, invoice number and PURCHASER’S purchase order number must be noted on the shipping container and all supporting documentation accompanying any authorized return shipment. Returns will be accepted only on new, unused, and/or standard stock goods returned within thirty (30) days of the date of the Agreement. PURCHASER must return goods on a freight prepaid basis. EPCO may, in its sole discretion, accept for return other items such PURCHASER must return goods on a freight prepaid basis. EPCO may, in its sole discretion, accept for return other items such as custom made goods, special order goods or goods requiring special processing. If EPCO decides to accept for return such goods, EPCO may charge PURCHASER a restocking fee in order to do so. Electrical or electronic goods will not be accepted for return unless such goods fail to meet specifications or were shipped in error. A credit memo will be issued for those items determined by EPCO to be in compliance with this return policy. A credit memo will be issued for original freight charges only in those cases where the goods were defective, were shipped incorrectly and/or failed to perform as specified.
13. CHANGES
Any requests for changes to the order for goods or services after the date of the Agreement will not be effective unless accepted in writing by both parties. Any request for changes must be initiated by the party seeking the change in the form of a written notice of such request. The request for such change can be for one or more of the following: (1) the goods (2) the specifications, drawings, designs or other such technical criteria; (3) field service needs; (4) goods quantities; (5) delivery dates; and (6) method or location of delivery. Notwithstanding the foregoing, EPCO expressly reserves its right to change, discontinue and/or modify the design and manufacture of its goods without obligation to furnish, retrofit or install goods previously or subsequently sold.
14. CONFIDENTIAL INFORMATION, TECHNOLOGY AND PROPRIETARY RIGHTS
The parties acknowledge that certain confidential information may be exchanged in the course of executing this Agreement and that all aspects of all discussions and materials exchanged will be treated as confidential and will not be disclosed to any third parties, except as permitted herein. Both parties agree to protect the other parties’ confidential information by not discussing, disclosing, copying and/or distributing this information to any employee who is not actively involved in the project. Furthermore, the terms of employment for employees involved in this project must include an agreement to protect the confidentiality of both parties’ confidential information. Examples of confidential information include, but are not limited to, bids or proposals, methods of manufacturing, engineering or manufacturing drawings, specifications and tolerances, operating procedures and processes, test reports, test methods, control systems, computer programs and instructions and similar information which is not available (or should not be made available) to competitors. Both parties agree to specifically label all confidential information as such. No written information shall be regarded as confidential information if it is not labeled or if it can be shown that such information:
1) is already in the public domain; 2) is already known to the other party; 3) is independently developed by the other party; 4) is disclosed to the other party by a third party through no fault of either party; and 5) is required by either party to be disclosed under applicable law or by a court of competent jurisdiction.
Any confidentiality obligation imposed by this agreement may be waived by written agreement of the parties. The parties acknowledge that their respective obligations hereunder will survive termination for a period of five (5) years after the effective date of termination of this Agreement. Within thirty (30) days after the effective date of termination of this Agreement, all written confidential information belonging to the other party will be returned or destroyed.
To the extent necessary to obtain subcontractor bids, to present design proposals to qualified customers, or to obtain governmental or regulatory body assessment/approval, EPCO is permitted to supply select portions of the confidential information to such third parties. Any such disclosure shall be reviewed and approved in writing by PURCHASER. Submissions of confidential information to third parties must be made under a signed confidentiality agreement prohibiting unauthorized disclosure, reproduction in any form, distribution or use of such information. Third parties are required to agree to return all confidential information upon request.
Both parties agree that the other party currently possesses certain core technology and proprietary rights to ideas, goods and processes related to their own area of expertise and business. Technology includes, but is not limited to, confidential and proprietary information developed by either party concerning their own existing or proposed goods and services, trade secrets and technical data. Proprietary rights include, but are not limited to, existing and proposed goods or methods which are covered by issued patents, pending patents or which are under review or development. The Agreement does not transfer the rights to one party’s technology or proprietary rights to the other party or permit use of such rights except as expressly permitted by the Agreement. All documents, drawings, specifications, procedures, processes, methods and systems, which are developed by one party and supplied to the other party will remain the property of the originating party. Both parties agree not to design or build identical or similar goods either in part or in whole for any third party or for their own use using the other party’s technology or proprietary rights.
15. COMPLIANCE WITH ANTI-CORRUPTION LAWS
PURCHASER represents and warrants, in connection with the transactions contemplated by this Agreement, and any other agreement contemplated by or entered into pursuant to this Agreement, that it shall take no action, directly or indirectly, that would constitute a violation of the United States Foreign Corrupt Practices Act, Canadian Corruption of Foreign Public Officials Act, United Kingdom Bribery Act or any other applicable anti-bribery or anti-corruption law, convention or regulation (collectively, “anti-corruption laws”). PURCHASER acknowledges and confirms that it and its Related Parties are familiar with the provisions of the anti-corruption laws. PURCHASER hereby agrees to indemnify, defend and hold harmless EPCO and its Related Parties from and against any and all losses, causes of action, liability, claims, demands, damages, judgements, awards, costs or expenses (including our legal fees and expenses on a solicitor-client basis) (collectively “Claims”) arising in connection with any alleged breach by PURCHASER or any of its Related Parties of this section. EPCO reserves the right to terminate the Agreement in its entirety, without liability to PURCHASER, if EPCO has a good faith basis for believing PURCHASER or any of its Related Parties has violated or intends to violate any country’s anti-corruption laws.
16. COMPLIANCE WITH EXPORT RESTRICTIONS
The Goods that the sale EPCO may be subject to the export control laws of the United States, Canada or other countries where its products are sold. PURCHASER acknowledges that it will comply with all such laws and regulations, and obtain all licenses to export, re-export or import EPCO’s products as may be required. PURCHASER will not, without first obtaining any necessary licenses, export or re-export any of EPCOs products, proprietary information or related technical data: (i) for any prohibited end uses; (ii) to any prohibited destinations; or (iii) to any individuals or entities that are presently on any denied party lists. Diversion contrary to U.S. law is prohibited. PURCHASER agrees to assist EPCO in obtaining any necessary export licenses or end-use statements for EPCO’s goods or services required for EPCO to deliver its goods and services to PURCHASER. EPCO shall not be liable to PURCHASER for any failure to provide goods, services or technical data as a result of any of the following governmental actions: (1) refusal to grant export or re-export licenses; or (2) cancellation of export or re- export licenses. EPCO reserves the right to not ship the goods or services and terminate the Agreement in its entirety, without liability to PURCHASER, if EPCO has a good faith basis for believing PURCHASER or any of its Related Parties has violated, or intends to violate, any country’s export regulations. PURCHASER hereby agrees to indemnify, defend and hold harmless EPCO and its Related Parties from and against any and all Claims arising in connection with any breach, or alleged breach, of this section 15 by PURCHASER or any of its Related Parties.
17. INDEMNITY
PURCHASER shall release, indemnify, defend and hold harmless EPCO and its Related Parties from and against all Claims for (i) damage to, or destruction of, property or injury (including death) to any person whatsoever, including without limitation to PURCHASER, its Related Parties, any of its or their customers, contractors or suppliers, arising from or related to the purchase or use or operation of EPCO’s goods or services, REGARDLESS OF THE CAUSE INCLUDING WITHOUT LIMITATION, THE NEGLIGENCE OR STRICT LIABILITY OF, OR BREACH OF CONTRACT, WARRANTY OR DUTY BY EPCO OR ITS RELATED PARTIES; and (ii)for any breach of any of the terms and conditions of this Agreement by PURCHASER. Furthermore, notwithstanding anything contained in the Agreement to the contrary, to the maximum extent permitted under law, PURCHASER shall release, indemnify, defend and hold harmless EPCO and its Related Parties from and against any and all Claims, asserted by, derived from or in favor of any person, party or entity, in respect of or resulting from: (i) loss of or damage to any well or hole (including the cost of re drill); (ii) blowout, fire, explosion, cratering or any uncontrolled well condition (including the costs to control a wild well and the removal of debris); (iii) damage to any reservoir, geological formation or underground strata or the loss of oil or gas therefrom; and/or (iv) pollution or contamination of any kind (other than surface spillage of fuels, lubricants, rig sewage or garbage, to the extent attributable to the negligence of EPCO) including but not limited to the cost of control, removal and clean-up, REGARDLESS OF THE CAUSE INCLUDING WITHOUT LIMITATION, THE NEGLIGENCE OR STRICT LIABILITY OF, OR BREACH OF CONTRACT, WARRANTY OR DUTY BY EPCO OR ITS RELATED PARTIES.
18. CONSEQUENTIAL DAMAGES WAIVER
Notwithstanding anything contained in this Agreement to the contrary, EPCO shall not, in any event, be liable for any special, incidental, consequential or indirect damages, loss of profits or revenues, loss of data, or for any claims, damages, costs or expenses (including legal expenses) or delay caused by defective material or workmanship (all of the foregoing collectively “Consequential Damages”) and PURCHASER hereby releases EPCO and its Related Parties from all such Consequential Damages, REGARDLESS OF HOW SUCH CONSEQUENTIAL DAMAGES ARE CAUSED, INCLUDING WITHOUT LIMITATION THE NEGLIGENCE OR STRICT LIABILITY OF, OR BREACH OF CONTRACT, WARRANTY OR DUTY BY EPCO OR ITS RELATED PARTIES.
19. SEVERABILITY
The fact that a provision contained herein is held invalid, illegal or unenforceable by a court of competent jurisdiction will not affect the other provisions hereof, which shall remain in full force and effect.
20. GOVERNING LAW
This Agreement shall be governed by the laws of Alberta, Canada. Each party hereby irrevocably submits itself to the exclusive jurisdiction of the courts of Alberta, and waives any objection it may now or hereafter have to the placing of venue in any such courts and any right to remove any such action or proceeding to another court.
21. ARBITRATION
The parties shall attempt in good faith to resolve any dispute. Each party will designate an officer with the responsibility and the authority to resolve the dispute. These officers shall meet within fifteen (15) days after the request to identify the scope of the dispute and the information needed to discuss and attempt to resolve such dispute. These officers shall then gather relevant information regarding the dispute and shall meet to discuss the issues and to negotiate in good faith to resolve the issue. In the event that the parties are unable to resolve the dispute within thirty (30) days after the specific meeting of the designated officers as specified above (or such longer time as the parties agree), then the dispute shall be resolved by binding arbitration under the terms of this section 24. Such arbitration shall be conducted in (jurisdiction of choosing), in accordance with the rules then in effect of the Arbitration & Mediation Institute of Ontario by three (3) arbitrators appointed in accordance with such rules. The award rendered by the arbitrators shall be final and binding, and the judgment may be entered upon it in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgement of the powers of the arbitrators.
22. LEGAL EXPENSES
In the event it is necessary for any party to enforce any provision of the Agreement, then in that event, the prevailing party shall be entitled to recover reasonable legal expenses on a full indemnity basis.
23. NOTICES
All notices required or permitted to be given hereunder must be in writing and shall be deemed effectively given when received or, if not received, when deposited with the post office as certified mail, return receipt requested, to the address of the party as contained in the Agreement, or as otherwise provided by either party upon notice to the other party.
24. SCOPE OF GOODS AND SERVICES TO BE PROVIDED
EPCO will provide to PURCHASER the goods and/or perform services as described in and subject to the terms and conditions of this Agreement which may be amended or modified by supplementary change orders agreed to by both parties in such event, the goods and/or services to be provided shall be deemed to include the goods and/or services described in such supplementary change orders.
EPCO will provide such resources and utilize such employees and/or third party consultants as it deems necessary to provide the goods and services. The manner and means used by EPCO to perform the services desired by the PURCHASER are in the sole discretion and control of EPCO. EPCO shall use commercially reasonable efforts to meet the schedules and times of performance for the services as set forth in the Agreement.
25. CONSTRUCTION
No provision of this contract may be construed against EPCO as the drafting party. The term “including” means “including without limitation.” The term “days” means calendar days unless otherwise expressly stated.
26. TERMINATION
In addition to any other remedies available to EPCO at law, EPCO may terminate the Agreement with the PURCHASER in the event that:
(a) PURCHASER fails to perform its obligations under or otherwise breaches any provisions of the Agreement or any other contract between PURCHASER and EPCO or any of EPCO’s affiliates;
(b) PURCHASER ceases to carry on its business substantially as such business is conducted on the date of the Agreement and such change in circumstances modifies EPCO’s obligations or impairs either party’s ability to discharge its obligations under the Agreement;
(c) PURCHASER is the subject of creditor protection of bankruptcy, reorganization, liquidation receivership or similar proceedings;
(d) PURCHASER is unable to pay its debts as they become due;
(e) Any term, condition or provision of the Agreement or any other contract between the PURCHASER and EPCO becomes invalid or illegal under any applicable law, rule or regulation; or
(f) An event of Force Majeure listed in section 8 above continues for a period of more than forty five (45) days.