Standard Terms and Conditions of Purchase
- Applicability: These Standard Terms and Conditions of Purchase (these “Terms”) are the only terms which govern the purchase of goods (“Goods”) and services (“Services”) by RKTM Acquisition Co., LLC d/b/a Revak Keene Turbomachinery (“RKTM”) and any of its subsidiaries or affiliates from the seller named on the accompanying purchase order (“Seller”). These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. The accompanying purchase order (the “Purchase Order”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller’s general terms and conditions of sale regardless whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller’s acceptance to the terms of this Agreement. Fulfillment of the Purchase Order constitutes acceptance of these Terms.
- Delivery of Goods and Performance of Services: Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If Seller fails to deliver the Goods in full on the Delivery Date, RKTM may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify RKTM against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Delivery shall be made in accordance with the terms specified in the Purchase Order. Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during RKTM’s normal business hours or as otherwise instructed by RKTM. Title and risk of loss passes to RKTM upon delivery of the Goods at the Delivery Point. Seller shall pack all goods for shipment according to RKTM’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. The Purchase Order number must appear on all shipping documents. Seller shall provide the Services to RKTM as described and in accordance with the Purchase Order or as otherwise agreed in writing by the parties and in accordance with the terms and conditions set forth in these Terms. Seller acknowledges that time is of the essence with respect to its obligations hereunder and the timely delivery of the Goods and performance of the Services.
- Inspection and Rejection of Nonconforming Goods: RKTM has the right to inspect the Goods on or after the Delivery Date. RKTM, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If RKTM rejects any portion of the Goods, RKTM has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If RKTM requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, RKTM may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 12. Any inspection or other action by RKTM under this Section shall not reduce or otherwise affect Seller’s obligations under the Agreement, and RKTM shall have the right to conduct further inspections after Seller has carried out its remedial actions.
- Seller’s Obligations Regarding Services: Seller shall: (a) before the date on which the Services are to start, obtain, and at all times while providing the Services, maintain, all necessary licenses and consents and comply with all relevant laws, regulations and ordinances applicable to the provision of the Services; (b) comply with all rules, regulations and policies of RKTM, including security procedures concerning systems and data and remote access thereto, building security procedures, and general health and safety practices and procedures; (c) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in such form as RKTM shall approve. During the term of this Agreement and for two (2) years thereafter, upon RKTM’s written request, Seller shall allow RKTM to inspect and make copies of such records; (d) obtain RKTM’s written consent prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller’s employees, to provide any Services to RKTM ( each such approved subcontractor or other third party, a “Permitted Subcontractor”). RKTM’s approval shall not relieve Seller of its obligations under the Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller’s own employees. Nothing contained in this Agreement shall create any contractual relationship between RKTM and any Seller subcontractor or supplier; (e) require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement; (f) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services; and (g) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by RKTM.
- Change Orders: RKTM may at any time, issue a written change order to the Purchase Order that alters, adds to or deducts from the Goods or Services but that is otherwise subject to these Terms (a “Change Order”). Seller shall promptly comply with the terms of any Change Order. If a Change Order causes a change to the cost or time for performance, the parties shall promptly agree to an equitable adjustment and incorporate such changes in the Change Order; and if the parties cannot agree to an equitable adjustment then RKTM may terminate this Agreement in whole or in part.
- Pricing and Payment Terms: The price of the Goods and Services is the price stated in the Purchase Order (the “Price”). Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees, and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of RKTM. Seller shall issue an invoice to RKTM on or any time after the completion of delivery or as otherwise specified in the Purchase Order and only in accordance with these Terms. Each invoice will be in a form acceptable to RKTM. RKTM shall pay, in U.S. dollars, all properly invoiced amounts due to Seller within sixty (60) days after RKTM’s receipt of such invoice, except for any amounts disputed by RKTM in good faith. Without prejudice to any other right or remedy it may have, RKTM reserves the right to set off at any time any amount owing to it by Seller against any amount payable by RKTM to Seller. In the event of a payment dispute, the parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
- Warranties: Seller warrants to RKTM that all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications and other requirements specified by RKTM; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights; these warranties survive any delivery, inspection, acceptance or payment of or for the Goods by RKTM. Seller warrants to RKTM that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. The warranties set forth in this Section are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of RKTM’s discovery of the noncompliance of the Goods or Services with the foregoing warranties. If RKTM gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to RKTM, and, if applicable, repair or re-perform the applicable Services.
- Indemnity: Seller shall defend, indemnify and hold harmless RKTM and its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with: (a) the Goods and/or Services purchased from Seller; (b) Seller’s negligence, willful misconduct or breach of the Terms; or (c) any claim that RKTM’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without RKTM’s prior written consent.
- Limitation of Liability: Nothing in this Agreement shall exclude or limit (a) Seller’s liability under Sections 3, 4, 7, or 8 hereof, or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.
- Insurance: During the term of this Agreement Seller shall, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged.
- Compliance with Law: Seller shall comply with all applicable laws, regulations and ordinances.
- Termination: In addition to any remedies that may be provided under these Terms, RKTM may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the Seller’s delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller 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, then RKTM may terminate this Agreement upon written notice to Seller. If RKTM terminates the Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by RKTM prior to the termination.
- 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.
- Confidential Information: All non-public, confidential or proprietary information of RKTM, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by RKTM to Seller, 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 this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by RKTM in writing. Upon RKTM’s request, Seller shall promptly return all documents and other materials received from RKTM. RKTM shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by RKTM on a non-confidential basis from a third party.
- Assignment: Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of RKTM. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. 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.
- 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 laws 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.
- Force Majeure: Neither party shall be liable for performance delays nor non-performance when and to the extent due to causes which are beyond its reasonable control and not reasonably foreseeable or avoidable, including, but not limited to: (a) government order, law, action or restriction; (b) acts of war or terrorism; (c) riot or other civil unrest; (d) epidemic or pandemic; (e) strike, lockout or other labor dispute; or (f) catastrophic “acts of God” (including, without limitation, fire, earthquake, and flood); and provided that the party alleging the force majeure notifies the other party of the occurrence, and that once the impediment is removed, the party alleging the force majeure proceeds diligently to fulfill the delayed obligation.
- Relationship of the Parties: Nothing contained in this Agreement 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.
- No Third-Party Beneficiaries: This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Severability and Surviva : 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. Provisions of these Terms which by their nature should apply beyond termination of this Agreement will remain in force after any termination or expiration of this Agreement including, but not limited to, Indemnity, Confidential Information, Venue and Choice of Law, and Survival.
