Legal

Terms and Conditions of Sale

Fox Innovation & Technologies Inc.

(For use with RKTM goods and services)

 

  •  1. Applicability: These Standard Terms and Conditions of Sale (these “Terms”) shall apply to all goods and services (collectively “Products”) provided by RKTM Acquisition Co., LLC d/b/a Revak Keene Turbomachinery (“RKTM”) and any of its subsidiaries or affiliates and may be changed from time to time at RKTM’s sole discretion. Customer accepts these Terms by signing the purchase order, acknowledgement, or similar document. These Terms, any written quotation, order acceptance, other provisions as may be accepted by RKTM in writing, and invoice issued by RKTM comprise the entire agreement between RKTM and Customer (the “Agreement”), and supersede all prior or contemporaneous communications, understandings, agreements, negotiations, representations, course of dealing, and warranties. As used herein, the term “Customer” shall mean a person, organization, or entity that purchases Products from RKTM. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. No Customer order will be binding until accepted by RKTM. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
  • 2. Payment Terms: Unless otherwise agreed in writing, RKTM’s standard payment terms for credit-approved U.S. customers are net 30 days from shipment date for Goods and 30 days from invoice date for Services. For international shipments the standard payment terms are fifty percent (50%) at time of order and fifty percent (50%) due at notification to ship. Payment shall be made by electronic transfer as set forth in the purchase order or otherwise sent to Customer. All payments will be in U.S. dollars. Invoiced amounts due to RTKM are not subject to set-off. Acceptance by RKTM of bank drafts, checks or other media of payment is subject to collection. RKTM may recover for each delivery as a separate transaction, without reference to any other delivery. RKTM reserves the right to change or modify the payment terms if Customer fails to make timely payment hereunder. In addition, unpaid accounts may result in the interruption of supply of Product, until such time as RKTM has received payment from Customer. In addition, late payments shall accrue a finance charge of ten percent (10%) per annum or the highest rate allowable by law, whichever is less. RKTM shall be entitled to recover all costs and expenses, including reasonable attorneys’ fees, arising out of Customer’s failure to make all payments due in a timely manner. 
  • 3. Taxes: All fees, taxes, and other governmental charges (except for income taxes of RKTM), which are imposed now or at a later date on the manufacture, transportation, delivery, sale, or use of product, shall be for the account of Customer in addition to the price of the Product. Customer shall reimburse RKTM for all taxes, excises or charges which RKTM may be required to pay to any government or governmental authority which are hereafter levied directly upon the production, sale, transportation or use of the Product. 
  • 4. Delivery: RKTM will deliver the Products FCA RKTM’s facility. Delivery dates are estimates only and are not guaranteed. RKTM shall not be liable for any delays, loss or damage in transit whether such transit is to or from Customer’s location. If Customer delays shipment, payment will be due when Customer is notified that the Products are ready to ship and RKTM will thereafter hold the Products at Customer’s risk and expense.
  • 5. Modifications: If changes in specifications or drawings are made at Customer’s request, RKTM will be entitled to an equitable adjustment in the price, delivery date, or both. 
  • 6. Specifications: Any RKTM specifications provided to the Customer are for descriptive purposes only and are not to be construed as warranties. RKTM reserves the right to make changes in details of design and construction that will, in our judgment, constitute an improvement to the Products. RKTM does not supply detailed or shop working drawings of Products. 
  • 7. Security Interest; Default: Customer hereby grants RKTM and RKTM hereby retains a security interest in the Products until the purchase price is fully paid. If payments are not made when due, RKTM may, at Customer’s expense, take possession of the Products wherever found and remove same without legal process. In the event of default by Customer, any payments which have been made to RKTM will be retained as damages without reducing RKTM’s right to recover for further damages resulting from the default. 
  • 8. Insurance: Customer shall at its sole cost and expense, maintain with an insurer satisfactory to RKTM, fire and extended coverage insurance in an amount sufficient to protect RKTM’s interest from the time of delivery until the Products have been paid for in full. Customer will assume all losses resulting from any cause that may not be covered by insurance. 
  • 9. STANDARD LIMITED WARRANTY: (A) (1) Manufacture and Repair. RKTM warrants to the Customer that equipment or parts repaired by RKTM, or parts manufactured by RKTM, are free from defects in materials and workmanship for a period of ninety (90) days from date of shipment or thirty (30) days from date of initial start-up, whichever occurs first. Upon the expiration of the above-stated periods, liability for alleged claims not asserted in writing shall terminate. RKTM will, at its sole election: (a) repair or replace, FCA RKTM’s facility, any such equipment or parts found to be defective; or (b) refund the original purchase price, provided RKTM receives written notice of the alleged defect within the above stated periods. New equipment, parts or accessories manufactured by others and not repaired by RKTM are not covered under this warranty and carry the warranty of the manufacturer only. Also excluded from the foregoing warranty are damages caused by ordinary wear and tear, erosion or corrosion, misuse, abuse or improper handling, or installation by Customer or any third party. (2) Equipment Overhauls. RKTM warrants that during equipment overhauls, RKTM will inspect all critical parts and remedy problems (if possible) found that could affect mechanical operation. Latent defects that cannot be found by normal nondestructive tests and inspections are not included in this warranty. (3) Power Claims. It is impossible to measure power output or consumption in normal installations, rated power is not guaranteed unless specifically so stated in the written quotation. Claims for high power consumption or low power output must be verified with a torque-measuring coupling or other similar device and must be confirmed by independent third parties paid for by Customer. (B) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 9(A), RKTM MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY DENIES ANY WARRANTY OF PRODUCT MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, AND NO SUCH WARRANTIES SHALL BE IMPLIED. ALL WARRANTIES, EXPRESS OR IMPLIED AND EXCEPT THE LIMITED WARRANTY EXPRESSLY STATED ABOVE, ARE EXCLUDED. RKTM SHALL NOT BE LIABLE FOR USE OF THE PRODUCTS, SINGULARLY OR IN COMBINATION WITH OTHER PRODUCTS, OR OTHERWISE BY CUSTOMER OR ANY THIRD PARTY. THE REMEDIES SET FORTH IN PARAGRAPH 9(A) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND RKTM’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 9(A). IN NO CASE SHALL RKTM’S LIABILITY FOR ANY LOSS OR DAMAGE TO CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THE WARRANTY STATED IN PARAGRAPH 9(A) EXCEED THE PURCHASE PRICE FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE APPLICABLE CLAIM.
    10. Limitation of Liability: (A) Customer assumes all risks of the use of the Products. (B) IN NO EVENT SHALL RKTM BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT RKTM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (C) IN NO EVENT SHALL RKTM’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PRODUCTS OR THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE ORIGINAL PURCHASE PRICE FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE APPLICABLE CLAIM. 
  • 11. Cancellation: (A) If any order placed by Customer and accepted by RKTM is canceled, Customer shall pay reasonable cancellation charges which will include non-recoverable costs and expenses incurred and commitments made by RKTM from time of order acceptance until the date of written notice of cancellation, plus reasonable compensation for loss of profit. (B) For Customer orders and/or for development contracts of a special nature, where RKTM’s performance or completion is delayed for a protracted period, either RKTM or Customer may, at any time after the end of one hundred eighty (180) days following the start of such delay, terminate such order upon ten (10) days written notice to the other party. Upon the giving of such notice, Customer shall pay RKTM for all non-recoverable costs and expenses incurred and commitments made by RKTM from time of order acceptance until the date of written notice of cancellation, plus reasonable compensation for loss of profit. Title to all material paid for by Customer will then vest in Customer and will be held by RKTM at Customer’s sole risk and expense. 
  • 12. Compliance with Laws. Each party shall comply with all laws and regulations applicable to the production and provision (in the case of RKTM) and receipt and use (in the case of Customer) of the Products provided hereunder. If additional compliance burdens are placed on RKTM, RKTM will be entitled to an equitable adjustment in the price, delivery date, or both. 
  • 13. Confidential Information: All non-public, confidential or proprietary information of RKTM, including but not limited to, specifications, samples, plans, drawings, documents, data, business operations, pricing, discounts or rebates, disclosed by RKTM to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Agreement is confidential, solely for the purpose of performing the Agreement. RKTM shall be entitled to injunctive relief for any violation of this paragraph. This paragraph does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party. 
  • 14. Assignment: Neither these Terms nor the Proposal may be assigned to any other party without express written approval of both RKTM and the Customer (which consent shall not be unreasonably withheld); provided however, RKTM may assign its rights and obligations under these Terms, in whole or in part, to any subsequent purchaser of RKTM or any of its subsidiaries or affiliates or any material portion of its assets. 
  • 15. Severability: Should any part of these Terms be deemed unlawful; the remainder of these Terms shall remain in effect and be fully binding on the parties. 
  • 16. Dispute Resolution: No action for the enforcement of remedies set forth herein shall be commenced more than two (2) years after the cause of action accrued for the enforcement of such remedies. 
  • 17. Venue and Choice of Law: Any action arising out of or related to the Products, or these Terms shall be governed and construed in accordance with the laws of the State of Texas, without regard to its conflict of law’s provisions. RKTM and the Customer agree that any litigation shall be conducted exclusively in the state or federal courts located in Harris County, Texas and RKTM and the Customer hereby consent to such jurisdiction and waive any personal jurisdiction or venue objections (including forum non conveniens) to such forum. 
  • 18. Force Majeure: Neither party shall be liable for any delay in or failure of performance to the extent due to causes which are beyond its reasonable control and not reasonably foreseeable and avoidable. When either party claims an excuse for non-performance under this paragraph, it shall give prompt notice in writing to the other party. If and to the extent of any delay which is excused pursuant to this paragraph, the relevant delivery dates for the Products and other excused performance dates will be deemed extended for a period of time equal to the period of such excused delay and the parties may mutually agree on new delivery or performance dates to apply at the conclusion of such extension period. 
  • 19. Waiver: The waiver by a party of any breach or violation of any provision of these Terms must be in writing, and any such waiver will not operate as, or be construed to be, a waiver of any subsequent breach or violation. 
  • 20. Suspension/Termination: In addition to any other remedies available to RKTM, RKTM may suspend or terminate any order for Product with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due for Products (or any other agreement Customer has with RKTM); (b) has not otherwise performed or complied with any of these Terms (or complied with the terms of any other agreement Customer has with RKTM); (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; or (d) exhibits other adverse credit conditions that are unsatisfactory to RKTM, as determined by RKTM in its sole discretion. 
  • 21. Relationship of the Parties: Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. 
  • 22. Anti-Corruption and Export Laws: The parties warrant that they and their affiliates and subsidiaries, including their respective directors, officers, employees, and other persons acting on behalf of any of the foregoing will: (a) conduct business in compliance with all applicable customs, export and import laws and regulations, including, but not limited to, the U.S. Department of State International Traffic in Arms Regulations, the U.S. Department of Treasury Foreign Assets Control Regulations, U.S. laws relating to unsanctioned foreign boycotts and all other applicable economic sanctions, anti-terrorism, anti-money laundering and related laws and regulations; (b) not import, export or re-export commodities, software, technology, technical data or services in contravention of any applicable law or regulation; (c) comply with all laws of the United States of America and any other applicable anti-corruption laws, and shall refrain from any conduct that would cause the parties to be in violation of any applicable anti-corruption laws, including, but not limited to, the U.S. Foreign Corrupt Practices Act; and (d) maintain a compliance program intended to prevent corruption and bribery within its supply chain.
  • 23. Returns:  Products purchased from RKTM cannot be returned without prior Return Material Authorization (RMA) from RKTM.  All returns are subject to a restocking fee to be advised by RKTM.  “Surplus” products purchased from RKTM are sold “as is” and cannot be returned, i.e., all sales are final.
  • 24. Patent Indemnity: In the event any Product manufactured by RKTM and furnished under this Agreement is to be made in accordance with drawings, samples or manufacturing specifications designated by Customer, Customer agrees to indemnify and hold RKTM harmless from any and all damages, costs and expenses (including attorney’s fees) relating to any claim arising from the design, distribution, manufacture or use of the Product or arising from a claim that such Product furnished to Customer by RKTM, or the use thereof, infringes any letters patent, foreign or domestic, and Customer agrees at its own expense to undertake the defense of any suit against RKTM brought upon such claim or claims.In the event any Product to be furnished under this Agreement is not to be made in accordance with drawings, samples, or manufacturing specifications designated by Customer, but rather is the design of RKTM, and the Product has not been modified by Customer or its customers, RKTM agrees to hold Customer and its customers harmless against any damages awarded by a court of final jurisdiction in any suit or suits for the infringement of any United States letters patent by reason of the sale or use of such Product furnished by RKTM under this Agreement, provided that RKTM is notified promptly in writing of any claim or suit and is permitted to assume the full direction and control of the defense against such a claim and of any suit brought thereon and is given authority, information and assistance by Customer (at RKTM’s expense) for such defense and authority to settle. In case any judgment rendered in such suit shall become final (beyond right of appeal), and where Customer has complied with the foregoing provisions of this paragraph to RKTM’s satisfaction, RKTM agrees to pay the damages and costs thereby awarded against Customer. If, subject to the above limitations, said Products, or any part thereof, should be finally held in such suit to constitute an infringement, RKTM shall have the right at its own expense either (a) to procure for the Customer rights to the patent, or (b) to modify or replace said Product with a non-infringing Product accomplishing the same purposes as the replaced Product, or (c) to withdraw such Product and refund to the Customer the purchase price thereof. RKTM shall have the right to settle any claim at its own expense (a) by procuring for Customer the right to continue using said Product without liability for infringement of such patent, or (b) by modifying or replacing said Product with a non-infringing Product accomplishing the same purposes as the replaced Product, or (c) by removing said Product and refunding to Customer the purchase price thereof. Customer’s remedies for damages resulting from the infringement or claimed infringement of any patent by the Product are exclusively limited to the provisions of this paragraph.
  • END

Standard Terms and Conditions of Sale

RKTM Acquisition Co., LLC ("We") propose to furnish the Purchaser ("You") the products and/or services (collectively referred to as the "Products") subject to the following terms and conditions:

  • Delivery: We will furnish our Products Ex-works our facility. Delivery to the transporting carrier will constitute delivery and transfer of title to you, subject to the provisions of paragraph 3 below. If you delay shipment, payment will be due when you are notified that we are ready to ship and the Products will thereafter be held by us at your risk and expense.

Delivery dates are approximate and not guaranteed. We will try hard to meet them. If, however, you are late in delivering to us information or parts needed by us to do the work or change your mind during the project, it may delay shipment. Projects may also be delayed by things beyond our reasonable control, like acts of God, acts of yours, fires, floods, strikes, accidents, wrecks, delays in transportation, shortages of material, delays by suppliers of material and acts of civil or military authority. In the event of delay due to such things, the time specified for completion will be extended for a reasonable period. If changes in specifications or drawings are made at your insistence, we will be entitled to an equitable adjustment in the price, delivery date, or both.

  • PAYMENT: Our standard payment terms are (i) net 30 days or as Agreed Upon from shipment date for credit-approved domestic customers. All International Payments Require 50% Down with an order and the Remainder due at Notification to Ship.

All payments are to be made at our offices in Harris County, Texas. We will only extend credit sale terms to you if we know you well or we check your credit rating and it is satisfactory to us. If you do not pay as agreed, we may take legal action to collect not only what is owed but also for interest on the amounts owed at twelve percent (12%) per annum until paid, plus legal fees and any other costs we incur in collecting the money.

  • TITLE: You hereby grant to us and we hereby retain a security interest in the Products until the purchase price is fully paid in cash. If you do not make payments when due, we may take exclusive possession of the Products wherever found and remove same without legal process, all at your expense. In the event of default by you, we agree that any payments which may have been made to us will be retained by us as liquidated damages without reducing our right to recover for fu1ther damages we may suffer from any cause arising out of the default.

     

  • STANDARD WARRANTY, REDMEDIES AND LIABILITY LIMIT: Our only warranty, your only remedies and the limit on our liability are specified in our Standard Limited Warranty, a copy of which is attached hereto and incorporated herein by this reference.

     

  • INSURANCE: Fire and extended coverage insurance in an amount sufficient to protect our interest in the Products is to be obtained from and maintained with an insurer satisfactory to us by and at your expense from the time of delivery until the Products have been fully paid for in cash. You will assume all losses resulting from any cause that may not be covered by insurance.

     

  • TAXES: Our products are sold exclusive of sales, use and other taxes. You must pay any taxes due either to us, in addition to our invoiced amount, or directly to the taxing authorities.

     

  • SPECIFICATIONS: Any of our specifications given to you will be descriptive and are not to be construed as warranties. We reserve the right to make changes in details of design and construction that will, in our judgment, constitute an improvement. We do not supply detailed or shop working drawings of our Products.
  • PATENTS: We will indemnify you for any liability you may incur because of claims of infringement of United States patents by the Products manufactured by us. You will indemnify us for any liability we may incur because of claims of infringement of United States patents in the use of the Products furnished hereunder.

     

  • CANCELLATION: Should the order be terminated for any just cause, you will pay us for all costs and expenses incurred and commitments made, plus a reasonable profit.

     

  • EMERGENCIES: For orders and/or for development contracts of a special nature, where our performance or completion is delayed for a protracted period, either we or you, at any time after the end of 180 days following the start of such delay, may terminate the order upon 10 days written notice to the other. Upon the giving of such notice, you will pay us for all costs and expenses incurred and commitments made in performance to the date of such delay, plus a reasonable profit. Title to all material paid for by you will then vest in you, and will be held at your risk and expense.

     

  • LAWS AND REGULATIONS: The Products to be produced by us and delivered hereunder will be produced in compliance with the Fair Labor Standards Act of 1938 as amended, when applicable. Price and delivery will be subject to change if we must comply with any other laws, orders, regulations or requirements.

     

  • GENERAL: All of the above provisions, plus those in our Standard Limited Warranty, and such other provisions as may be accepted by us in writing, all of which are accepted by you and supersede your order form, if any, will constitute the entire agreement for the sale of the Products. Work done or shipment by us will not constitute acceptance of any inconsistent or added terms and conditions. Any representation, promise, course of dealing, or trade usage not contained or referenced herein, will not be binding on us. No modification, waiver, or other change will be binding on us unless agreed to by us in writing.

These terms and conditions will be interpreted according to the laws of the State of Texas.

ALL ORDERS ARE SUBJECT TO ACCEPTANCE BY US, AT OUR HOME OFFICE, AND NO ORDER WILL BE BINDING UPON US UNTIL SO ACCEPTED.

January 1, 2022
Form No. OP* 500.00D

STANDARD LIMITED WARRANTY

RKTM Acquisition Co., LLC (“We”) warrant to the customer (You) that equipment or parts repaired by us, or parts manufactured by us, are free from defects in materials and workmanship for a period of ninety (90) days from date of shipment or thirty (30) days from date of initial start-up, whichever occurs first. New equipment, parts or accessories manufactured by others and not repaired by us are not covered under this warranty and carry the warranty of the manufacturer only.

We will repair or replace, at our election, Ex-works Texas, any such equipment or parts found to be defective, or, in the alternative, we may, at our election, refund your original contract purchase price, provided we receive written notice of the alleged defect within the above stated periods. Upon the expiration of the above-stated periods, liability for alleged claims not asserted in writing shall terminate.

Excluded from the foregoing warranty are damages caused by ordinary wear and tear1 erosion or corrosion, or by misuse, abuse or improper handling or installation by you or any third party.

We warrant that during equipment overhauls, we will inspect all critical parts and remedy problems found that would affect mechanical operation. Latent defects that cannot be found by normal nondestructive tests and inspections are not included in thiswarranty.

Because it is impossible to measure power output or consumption in normal installations, rated power is not guaranteed unless specifica1ly so stated in the written contract. Claims for high power consumption or low power output must be verified with a torque-measuring coupling or other similar device. Power claims must be confirmed by independent third parties paid for by you.

THE WARRANTY STATED ABOVE IS EXCLUSIVE.WE MAKE NO ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. WE SHALL NOT BE RESPONSIBLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR FOR ANY OTHER CLAIM, WHETHER IN CONTRACT OR IN TORT, ARISING OUT OF THE SALE, REPAIR OR USE OF OUR EQUIPMENT OR PARTS, IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT THE REMEDIES STATED ABOVE ARE EXCLUSIVE.

IN NO CASE SHALL OUR LIABILITY, WHETHER FOUNDED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE} FOR ANY LOSS OR DAMAGE TO CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THE WARRANTY STATED ABOVE EXCEED THE ORIGINAL CONTRACT PURCHASE PRICE.

Any warranties or claims which differ from the foregoing are unauthorized by us and become the warranty solely of the party making them, unless specifically authorized in writing by one of our officers.

Should any of the foregoing provisions be held ineffective, the remaining provisions shall continue in full force and effect.

January 1, 2022
Fonn No. OP-500.00C