THESE TERMS AND CONDITIONS (THIS “AGREEMENT”) SHALL APPLY TO AND WILL BE INCORPORATED INTO ALL PURCHASE ORDERS (EACH AN “ORDER”) ISSUED BY CIMARRON ENERGY INC. ON BEHALF IF ITSELF AND ITS PRESENT AND FUTURE AFFILIATES (“CIMARRON”) TO ANY SUPPLIER TO CIMARRON. ALL REFERENCES TO “SUPPLIER” SHALL MEAN THE SELLER OF THE GOODS OR SERVICES (“DELIVERABLES”) THAT ARE THE SUBJECT OF SUCH ORDER.
ORDER CONFIRMATION BY SUPPLIER OR ACCEPTANCE BY SUPPLIER TO SUPPLY ANY DELIVERABLE TO CIMARRON SHALL CONSTITUTE SUPPLIER’S OFFER TO SUPPLY THE SAME ONLY IN ACCORDANCE WITH THESE TERMS AND CONDITIONS. SUPPLIER’S ACCEPTANCE OF CIMARRON’S ORDER SHALL BE SUBJECT TO THESE TERMS AND CONDITIONS. ANY PURPOSED ACCEPTANCE OF CIMARRON’S OFFER BY SUPPLIER UNDER TERMS THAT VARY FROM, CONFLICT WITH, OR MODIFY THESE TERMS AND CONDITIONS SHALL NOT BE EFFECTIVE OR ACCEPTED BY CIMARRON. NEITHER SUPPLIER’S COMMENCEMENT OF PERFORMANCE, NOR DELIVERY OF DELIVERABLE SHALL BE DEEMED TO BE AN ACCEPTANCE BY CIMARRON OF ANY VARIANCE FROM THESE TERMS AND CONDITIONS. CIMARRON RECOGNIZES THAT SUPPLIER MAY, FOR OPERATING CONVENIENCE, DESIRE TO UTILIZE ITS OWN FORMS IN CONNECTION WITH AN ORDER, AND IN SUCH CASE, ANY TERMS, CONDITION OR PROVISION IN SUCH FORM THAT MODIFIES, CONFLICTS WITH OR IS ADDED TO THESE TERMS AND CONDITIONS SHALL BE DEEMED WAIVED BY SUPPLIER UNLESS SPECIFICALLY AGREED TO IN WRITING BY AN OFFICER OF CIMARRON. NOTWITHSTANDING THE ABOVE, IF CIMARRON AND SUPPLIER HAVE PREVIOUSLY ENTERED INTO A MASTER AGREEMENT, SUCH MASTER AGREEMENT WILL BE READ IN CONJUNCTION WITH THESE TERMS AND CONDITIONS; THE MASTER AGREEMENT TERMS SHALL TAKE PRECEDENCE IN ANY CONFLICT WITH, OR VARIANCE FROM, THESE TERMS AND CONDITIONS.
1.) Acceptance. This Order is not binding on Cimarron until Supplier accepts this Order. Supplier may accept this Order (a) in writing; (b) by commencing performance, (c) accepting payment, or (d) by shipping or delivery of Deliverable. If Supplier does not accept this Order in writing or commence performance within ten (10) days of Supplier’s receipt of this Order, this Order will lapse unless otherwise ratified by Cimarron. This Order may be withdrawn or modified by Cimarron at any time before it is accepted.
2.) Delivery. Supplier shall deliver the Deliverables in the manner, quantities, and by the date (s) specified in this Order (the “Delivery Date”), or as otherwise agreed in writing by the parties. If no Delivery Date is specified, Supplier shall deliver the Deliverables promptly upon Supplier’s receipt and acceptance of this Order. Timely delivery of the Deliverables is of the essence. Supplier shall immediately report, in writing, any delivery delays to Cimarron. Supplier shall take all reasonable steps to avoid or end delays and Supplier is solely responsible for any additional cost in connection therewith. If Supplier fails to deliver the Deliverables in full on or by the Delivery Date, Cimarron has the right to terminate this Order immediately by providing written notice to Supplier and Supplier shall indemnify Cimarron against any losses, claims, damages, and reasonable costs and expenses attributable to Supplier’s failure to provide notice and/or deliver the Deliverables by the Delivery Date. If Supplier cannot, or does not, deliver the quantity of the Deliverables ordered, Cimarron has the right to cancel, reject all, or any excess or partial quantities of Deliverables. Any such rejected Deliverables shall be returned to Supplier at Supplier’s sole risk and sole expense. If Cimarron does not reject the Deliverables and instead accepts the Delivery of the Deliverables at the increased or reduced quantity, the Price for the Deliverables shall be adjusted on a pro-rata basis. All Deliverables will be shipped F.O.B. Destination and must be delivered to the address specified in this Order (the “Delivery Location”) during Cimarron’s normal business hours or as otherwise set forth in this Order.
3.) Packing. Unless otherwise specified, all goods shall be suitably packed, marked and shipped by Supplier in accordance with industry standards and practices in a manner to ensure that the Deliverables arrive in an undamaged condition at the lowest practical transportation costs. No packing or cartage charge is allowed except as set forth in this Order.
4.) Shipping Terms. If requested by Cimarron, Supplier shall give written notice of shipment to Cimarron when the goods are delivered to a carrier for transportation. Supplier shall promptly provide Cimarron all shipping documents, including the commercial invoice, packing list, bill of lading and any other documents necessary to release the Deliverables to Cimarron after Supplier delivers the Deliverables to the transportation carrier. The Order number must appear on all shipping documents and any other documents pertaining to the Order. Furthermore, in no event shall Cimarron be liable, and carrier agrees to protect, defend, indemnify, hold harmless, and release Cimarron from and against any claim arising out of or related to any injury, illness, death, or damage to the property, of any third party arising from or related to an act or omission by carrier under this Bill of Lading. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS BILL OF LADING, NEITHER CARRIER OR CIMARRON SHALL BE LIABLE TO THE OTHER, AND EACH WAIVES, RELEASES, PROTECTS, DEFENDS, INDEMNIFIES, AND HOLDS THE OTHER HARMLESS FROM AND AGAINST ITS OWN CONSEQUENTIAL DAMAGES.
5.) Title and Risk of Loss. Unless otherwise set forth in this Order, title, and risk of loss to the Deliverables passes to Cimarron upon acceptance of the Deliverables by Cimarron.
6.) Inspection and Rejection of Nonconforming Deliverables. Cimarron has the right to inspect the Deliverables. Cimarron, at its sole option, has the right to inspect all or a sample of the Deliverables, and has the right to reject all or any portion of the Deliverables if it determines that the Deliverables are nonconforming or defective. Cimarron’s failure to inspect shall not constitute a waiver of any of Cimarron’s rights or remedies or relieve Supplier of any of its obligations under this Order. Cimarron’s inspection of Deliverables shall not constitute acceptance of Deliverables. If Cimarron rejects any portion of the Deliverables, Cimarron has the right to (a) cancel or rescind this Order in its entirety, (b) accept the Deliverables at a mutually agreed price, or (c) reject the Deliverables and require replacement of the rejected Deliverables. If Cimarron requires replacement of the Deliverables, Supplier shall, at its expense, promptly replace the nonconforming Deliverables and pay for all related expenses and damages, including, but not limited to, transportation charges for the return of the defective Deliverables and the delivery of replacement Deliverables. If Supplier fails to timely deliver replacement Deliverables, Cimarron may 1. replace Deliverables with goods from a third party and charge Supplier the whole cost thereof and 2. terminate this Order for cause pursuant to terms herein. Any action by Cimarron under this section shall not reduce or otherwise affect Supplier’s obligations hereunder, and Cimarron shall have the right to conduct further inspections after Supplier has carried out its remedial actions.
7.) Price. The price of the Deliverables is the price stated in this Order (the “Price”). If no price is included in this Order, and there are no other agreements between the parties governing pricing, the Price shall be the price set out in Supplier’s published price list in force as of the date of this Order. Unless otherwise specified in this Order, the Price includes all transportation costs to the Delivery Location. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Cimarron. Supplier’s prices must not include sales, value added taxes, use or similar taxes, and such taxes, where applicable, will be added to the total prices and invoiced accordingly. Invoices must delineate the type of tax being charged and if the tax is one that is legally the liability of Supplier but is being passed through to Cimarron, the invoice must denote that such tax is being passed through. If tax legislation is enacted or reinterpreted in a particular jurisdiction requiring Supplier to increase or adjust the taxes, duties or levies it collects on the Deliverables, the parties agree to meet in good faith to adjust invoices accordingly. If a party is required to remit or pay taxes that are the other party’s responsibility hereunder, the party responsible for such taxes shall promptly reimburse the other party for such taxes. Any party entitled to an exemption from any such taxes shall furnish the other party any necessary documentation thereof.
8.) Invoicing and Payment. Unless otherwise set forth in this Order, (a) Supplier shall issue a complete and correct invoice within sixty (60) days following delivery / completion of the Deliverables; and (b) Cimarron shall pay all property invoiced amounts due to Supplier within sixty (60) days after Cimarron’s receipt of such invoice, except for any amounts disputed by Cimarron in good faith. After sixty (60) days from Cimarron’s receipt of invoice, Supplier may not revise or amend an invoice or otherwise assert an invoice is inaccurate with the result of increasing in the amount due by Cimarron. Time calculation shall begin on the date a correct invoice in full compliance with the invoicing requirements herein is received by Cimarron, and any resulting due date falling on a weekend or holiday shall move to next business day. Supplier shall continue performing its obligations under this Order notwithstanding any payment dispute. Unless otherwise set forth in this Order, Cimarron is not required to pay any invoice prior to Deliverables being delivered or completed and accepted. Supplier waives its right to payment for any amounts not invoiced within sixty (60) days following final delivery/completion of Deliverables. Any full or partial payment of a discharged invoice does not constitute a waiver of the discharged status of the invoice. If Deliverables are completed/delivered in multiple shipments or stages, Supplier shall submit multiple invoices corresponding with Deliverables delivered on such multiple Delivery Dates. All of Supplier’s invoices must be: (a) directed to the address specified on this Order; (b) reference this Order’s number; and (c) accompanied by documentation supporting all amounts invoiced. Payment is not final acceptance of Deliverables nor is it a waiver by Cimarron of any of its rights or remedies under this Order or any applicable law. Notwithstanding anything to the contrary contained herein, should Supplier submit an invoice containing line-item pricing less than the Price, the pricing for this Order is amended without the requirement of a formal amendment with signatures by both parties to the lowest price. Invoices that include an attached field ticket signed by an authorized representative of Cimarron does not validate pricing.
9.) Warranty. In addition to any goods, products or equipment specific warranty provided by Supplier, Supplier provides the additional warranties contained in this Order and all such warranties apply notwithstanding any other available remedies. Unless otherwise specified herein, warranty will be at a minimum of twenty (24) months from delivery or twelve (12 months from delivery to Cimarron’s end user. If supplier standard warranty exceeds this period, the longer period shall prevail. Deliverables will: (a) be new and free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs and other requirements specified by Cimarron; (c) be in strict conformity with accepted industry standards and practices; (d) be fit for their intended purpose and operate as intended; (e) be merchantable; (f) be free and clear of all liens, security interest or other encumbrances (except for those Deliverables leased or rented to Cimarron); and (g) will not infringe or misappropriate any third party’s patent or intellectual property rights. The warranties in this section survive any delivery, inspection, acceptance, or payment of or for the Deliverables. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Cimarron’s discovery of the noncompliance of Deliverables with the foregoing warranties. Unless expressly agreed to by the parties in this Order and/or Other Agreement, Supplier shall, at its own expense, remediate, remove, replace, repair, re-perform or correct (“Correction”), at Cimarron’s election, the nonconforming Deliverables and pay for all related expenses and any damages resulting therefrom. Should Supplier fail to commence preparation for or the actual Correction of any such nonconforming Deliverable within twenty-four (24) hours of notice by Cimarron, Cimarron shall have the right to perform the Correction itself or to have the Correction conducted by a third party on an expedited basis. Supplier shall be responsible for all costs of such Correction, including but not limited to any amounts payable to third parties, third-party certifications and testing, and Cimarron’s internal costs. Any Correction pursuant to this section shall be subject to the same warranties and remedies contained herein. In lieu of the remedies provided in this section, Cimarron may elect to have Supplier reimburse it for the reasonable cost of the Correction. If Supplier is not the manufacturer of goods or equipment sold or otherwise furnished to Cimarron (excluding those that are leased or rented to Cimarron), Supplier will obtain when possible assignable warranties for such goods or equipment, from its subcontractors and suppliers, which it will assign to Cimarron. If such warranties are non-assignable, Cimarron shall be deemed subrogated to Supplier’s rights thereunder.
10.) General Indemnification. Unless otherwise provided for in an Other Agreement between the parties and without altering any of the obligations thereunder, Supplier shall, at its expense, defend, indemnify and hold harmless (collectively “Indemnify”) Cimarron, Cimarron's parent company, its and their subsidiaries, affiliates, successors and assignees, and its and their respective directors, officers, shareholders, members, employees, customers, invitees, contractors (of any tier other than Supplier or Supplier’s subcontractors), landowners, partners, agents, successors-in-interest, insurers, working interest owner(s), or non-operator(s) for whom Cimarron is obligated to perform services (collectively, "Indemnitees") from and against any and all loss, injury, death, damage, liability, claim, suit, deficiency, action, judgment, interest, award, penalty, fine and expense, including reasonable attorney and professional fees and costs, the cost of enforcing any right to indemnification hereunder, the cost of pursuing any insurance providers, and all other damages whatsoever (collectively, “Losses”) arising out of or occurring in connection with: (a) Supplier’s or its personnel, agents, invitees, or subcontractors (of any tier), or its and their respective personnel, agents, invitees, or subcontractors (collectively “Supplier Group”) obligations or performance under this Order or (b) Supplier Group’s negligence or willful misconduct; or (c) any breach of this Order. Supplier will not enter into any resolution or settlement of Losses with another party without Cimarron’s prior written consent.
11.) Cimarron’s Locations and Indemnification. In the event Supplier is required or requested to enter any location that is owned, leased, operated or under the control of Cimarron other than Cimarron’s corporate or field office buildings and grounds or commercial (non-oilfield) properties (“Cimarron’s Location”) by Cimarron or any other Indemnitee, Supplier agrees and warrants that no member of Supplier Group will enter Cimarron’s Location unless Supplier has a valid and existing MA containing knock-for-knock (mutual) indemnity provisions allocating risk. In the event Supplier breaches this obligation, Supplier shall, at its expense, Indemnify any and all Indemnitees against any and all Losses without limit and without regard to fault (active or passive) of any party or parties including the sole, joint or concurrent negligence of Cimarron, any theory of strict liability and defect of premise, or the unseaworthiness of any vessel (whether or not preexisting the date of this Order), incurred by any and all Indemnitees arising out of or in connection with any member of Supplier Group’s presence on Cimarron’s Location. Supplier will not enter into any resolution or settlement of Losses with another party without Cimarron’s prior written consent.
12.) Liens. Supplier shall pay when due all its obligations to third parties incurred in connection with the Deliverables and shall keep Cimarron’s property free and clear of all liens and other encumbrances arising out of this Order. If Supplier breaches this obligation, then, in addition to any other rights which Cimarron may have against Supplier, Cimarron may withhold payment from Supplier until sufficient funds have been withheld to satisfy such obligations and/or to cause the release of such liens or other encumbrances.
13.) Cimarron’s Materials and Equipment. Any materials and/or equipment furnished by Cimarron in connection with this Order shall be deemed as held by Supplier in trust for application to this Order and without transfer of any interest for such materials and equipment to Supplier. Cimarron supplied materials and/or equipment, while in Supplier’s custody or control shall be: (a) held at Supplier’s risk, (b) adequately marked as Cimarron’s property and segregated from property of Supplier, (c) kept insured by Supplier at Suppliers’ expense in an amount equal to the replacement cost with loss payable to Cimarron, and (d) immediately returned to Cimarron upon Cimarron’s request, in which event Supplier shall redeliver to Cimarron in the same condition as originally received by Supplier, normal wear and tear excepted. All such materials and/or equipment not used in the manufacture or installation of the Deliverables shall be returned in good condition, less normal wear, and tear, as directed by Cimarron at Cimarron's expense. Supplier shall pay for all materials and/or equipment neither incorporated into nor returned (e.g., stolen).
14.) Subcontractors. Supplier is liable to Cimarron for all acts, omissions, and defaults of Supplier’s subcontractors, of any tier, and such subcontractor’s personnel, agents, and invitees (collectively, “Supplier’s Subcontractors”) arising out of or related to this Order to the same extent as if they were the acts, omissions and defaults of Supplier. Supplier agrees to provide a list of all subcontractors providing the Deliverables under this Order, at Cimarron’s request. Supplier shall require applicable Supplier’s Subcontractors to comply with this Order. This section does not operate to limit or relieve in any way any obligation of Supplier to Cimarron under this Order.
15.) Permits. Supplier shall procure at Supplier's sole expense all permits, certificates and licenses necessary by Applicable Laws.
16.) Compliance with Supplier Code and Conduct and other Cimarron Requirements. Supplier shall comply, in all material respects, with Cimarron’s Supplier Code of Conduct and all other applicable Cimarron policies, procedures and other requirements. Supplier is responsible for all costs associated with complying with applicable Cimarron policies, procedures and other requirements, and Supplier is not entitled to reimbursement for such costs for any reason whatsoever.
17.) Health, Safety and the Environment. Supplier shall perform any services included in the Deliverables in a safe and conscientious manner, taking all reasonable and necessary action, including but not limited to, those prudent industry practices to protect people, property, and the environment. Supplier shall provide Cimarron with prior written notice of any hazardous materials proposed to be used in services, and usage of such hazardous materials is subject to Cimarron’s consent. Supplier shall not discharge or release hazardous material to the environment while performing services under this Order. Supplier shall be solely responsible for any such discharge or release and any damages related thereto. Cimarron has the right to suspend services for so long as necessary to prevent or stop violations of any health, safety and environmental policies/procedures or applicable law by Supplier, its subcontractors and its and their employees or representatives. Supplier shall cause its subcontractors to comply with this section.
18.) Insurance. Except as otherwise stated in this Order, or otherwise agreed by the parties in a related MA or Other Agreement, to the extent that this Order provides for the Supplier to perform services on or be present on any location owned, leased, operated or under the control of Cimarron, Supplier shall obtain and maintain throughout the term of this Order, at Supplier's sole expense and with an insurance company or companies reasonably satisfactory to Cimarron and authorized to do business in the jurisdiction in which the services are to be performed, insurance coverage of the types and in the minimum amounts as follows: (a) Worker’s Compensation in compliance with the applicable laws of each jurisdiction affected by this Order; (b) Employer’s Liability: $500,000; (c) Commercial General Liability (including product liability) in a sum no less than $1,000,000 for each occurrence; and (d) if the Supplier will use or provide for use of motor vehicles in providing and/or performing this Order, automobile (motor vehicle) insurance covering all liabilities for personal injury and property damage arising from the use of such vehicles, with limits of no less than $500,000. Additionally, Supplier shall: (a) cause Cimarron, which shall include its parent and all its subsidiaries and affiliates, to be named as an additional insured under all of Supplier’s insurance policies with the exception of Workers’ Compensation; (b) provide a waiver of subrogation in favor of Cimarron, which shall include its parent and all its subsidiaries and affiliates, under all policies; (c) upon request, provide Cimarron with certificates of insurances evidencing the requirements contained herein. If Supplier hires a Subcontractor to provide any or a portion of such services, then Supplier warrants that, as a part of the subcontract, the Subcontractor shall obtain and maintain the same insurance coverage of the types and limits as required of Supplier and meet all other requirements of this section applicable thereto. The limits set forth are minimum limits and will not be construed to limit Supplier’s liability.
19.) Termination. Except as otherwise stated in this Order, or otherwise agreed by the parties in a related Other Agreement, Cimarron may terminate this Order immediately upon notice to the Supplier, with or without cause, either before or after the acceptance of the Deliverables, if Supplier has not performed or complied with any of these Terms, in whole or in part. Cimarron’s written notice to cancel this Order for cause or convenience shall be effective from receipt of notice. If Supplier becomes insolvent, files a petition for bankruptcy or commences or has commenced against its proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then Cimarron may terminate this Order immediately upon notice to Supplier. If Cimarron terminates this Order for any reason, Supplier's sole and exclusive remedy is payment for conforming Deliverables received and accepted by Cimarron prior to the termination; and, if terminated for convenience, additionally, the reasonable costs incurred by Supplier as a direct result of termination by Cimarron for non-cancellable or non-terminable charges directly related to the Deliverables. In no event will Cimarron’s liability for termination exceed the amount that would otherwise be payable to Supplier under this Order in the absence of termination, and Cimarron will not be liable for lost profits. Notwithstanding anything contrary herein, Cimarron may terminate this Order upon written notice to Supplier if the Supplier has failed to cure a default within the appropriate cure period of thirty (30) days from notice. Cimarron may also terminate this Order upon written notice to Supplier if Supplier (i) seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization; or (ii) has a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee or assignee in bankruptcy or in insolvency covering all or substantially all of Supplier’s property or providing for the liquidation of Supplier’s property or business affairs, and such decree is not vacated within sixty (60) days.
20.) Audit. Cimarron has the right to inspect and audit at all reasonable times Cimarron’s accounts and records pertaining to the Deliverables and Supplier’s performance under and compliance with this Order.
21.) Limitation of Action. Any action by Supplier against Cimarron arising out of or related to this Order must be commenced within one (1) year after the cause of action has accrued, or to the shortest duration allowed by law.
22.) Waiver. No failure of Cimarron to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Order will operate or be construed as a waiver of any other right, remedy, power or privilege unless set forth in writing and signed by Cimarron.
23.) Amendment and Modification. Changes, deviations, substitutions, or modifications to this Order must be expressly authorized in writing by Cimarron.
24.) Confidential Information. Information, data or material (regardless of form) including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Cimarron to Supplier, 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 Order is confidential, solely for the use of performing this Order and may not otherwise be disclosed or copied unless authorized by Cimarron in writing. Upon Cimarron's request, Supplier shall promptly return all documents and other materials received from Cimarron. Cimarron shall be entitled to injunctive relief for any violation of this section. This section and related obligations do not apply to information that is: (a) in the public domain; (b) known to Supplier at the time of disclosure; or (c) rightfully obtained by Supplier on a nonconfidential basis from a third party.
25.) Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under this Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party's fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable ("Force Majeure Event"). Supplier's economic hardship or changes in market conditions are not considered Force Majeure Events. Supplier shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Order. If a Force Majeure Event prevents Supplier from carrying out its obligations under this Order for a continuous period of more than ten (10) business days, Cimarron may terminate this Order immediately by giving written notice to Supplier. Supplier’s performance will not be excused where alternate sources of supply are available.
26.) Assignment. Supplier shall not assign or transfer any of its rights or obligations under this Order without the prior written consent of Cimarron. Cimarron may assign, delegate, or transfer any or all rights, duties, or obligations under this Order. This Order is binding upon and inures to the benefit of the respective successors and permitted assigns of the parties hereto.
27.) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Order can 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 has authority to contract for nor bind the other party in any manner. No relationship of exclusivity will be construed from this Order.
28.) No Third-Party Beneficiaries. This Order is for the sole benefit of the parties and their respective successors and permitted assigns. Nothing herein, express, or implied, is intended to or confers upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
29.) Governing Law. All matters arising out of or relating to this Order are governed by and construed in accordance with the laws of the State of Texas, without giving effect to any choice or conflict of law provision that would cause the application of the laws of any other jurisdiction.
30.) Jurisdiction. Any legal suit, action or proceeding arising out of relating to this Order must be instituted in the federal courts or state courts of the State of Texas, in each case located in the city of Houston, Texas, Harris County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
31.) Notices. All notices, requests, consents, demands, claims and other communications relating to or arising out of this Order must be in writing and addressed to the receiving party at the address set forth on the face of this Order, with a copy of notices directed to Cimarron being mailed to: 12120 Wickchester Lane, Suite 400, Houston, TX 77079. Notices may be delivered by US Mail, a nationally recognized carrier service, e-mail, or fax. Notice is only effective upon receipt of the receiving party.
32.) Severability. If any term in this Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term of this Order or invalidate or render unenforceable such provision in any other jurisdiction.
33.) Survival. Sections of this Order which by their nature apply beyond their terms will remain in force after any termination or expiration of this Order.
34.) Attorney’s Fees and Costs. If either party is required to employ legal counsel or to incur other expenses to enforce any provision of this Order, then the substantially prevailing party is entitled to recover from the non-prevailing party the amount of all reasonable attorneys’ and expert fees, and all other expenses and costs reasonably incurred in enforcing this Order or in defending against a claim, demand, action or proceeding.
35.) Business Conduct and Compliance with Laws.
For the purpose of this Article:
(a) “Anticorruption Laws” means the UK Bribery Act 2010 (UKBA), the US Foreign Corrupt Practices Act 1977 (USFCPA) as amended from time to time, and any applicable national, regional, provincial, state, municipal or local laws and regulations that prohibit bribing, or Improper Payments or other benefits to Government Officials or any other Persons.
(b) “Facilitation Payment” means the giving of anything of value to speed up and on-going process and/or routine government action (for example, customs inspections, visa processing, and certain permits/licenses). These routine actions would be ordinarily and commonly performed by the Government Official, and would be nondiscretionary, that is, for something to which the payer is already legitimately entitled.
(c) “Government Official” means: (i) any director, officer or employee of any Public Body including (1) employees paid full time or part time, (2) consultants and contractors of any government department or agency whether executive, legislative or judicial branches of government at all levels from national, state, local or town level; (ii) all employees of national oil companies and national services companies; (iii) any person acting in an official capacity for or on its behalf; (iv) any officer or employee or candidate of any political party or faction; (v) anyone otherwise holding a legislative, administrative or judicial position at any Public Body; (vi) any director, officer or employee of any public international organization (e.g. the United Nations or the World Bank). Government Official also includes immediate close family members including spouse or partner, grandparents, parents, siblings, children, nieces, nephews, aunts, uncles and first cousins; and any other individuals who share the same household with the Government Official.
(d) “Improper Payment” means the offer, promise, authorization, request, acceptance or agreement, whether directly or indirectly, to give or receive anything of value (whether nominal or otherwise) including Facilitation Payments, in order to (i) improperly influence someone’s judgment about Cimarron products or services or those of another company; (ii) improperly gain advantage when selling Cimarron products and services, conducting business transactions, or representing Cimarron interests; or (iii) influence the use of discretionary authority by any Government Official or Persons. For the purpose of this definition, anything of value shall include but is not limited to payment of available funds, favors, gifts, entertainment, excessive promotional activities, investment opportunities, in kind contributions, stock, options, contracts or a promise that has a value or can be exchanged for a value and/or benefit and also creation of a favorable or easier working conditions whether in the present or in the future.
(e) “Person or Persons” means any corporation (including corporate body in any form), partnership (limited or unlimited), trust, instrumentality, unincorporated venture, or association and individual.
(f) “Public Body” means any central or local government, or any ministry, department, agency, organ or instrumentality of state, or entity owned or controlled by, a government or a state, including but not limited to a National Oil Company).
35.1 Supplier represents, warrants, agrees and undertakes that: (a) all work secured, performed, maintained, contracted and extended under the applicable Order whether directly or indirectly is made on the basis that Supplier has and will comply with any and all applicable laws, including but not limited to all federal, state or local laws, rules, regulations and codes Anticorruption Laws and this Article 36; (b) it shall be liable for all acts or omissions whether directly or indirectly of its employees and subcontractors of any tier, including agents and consultants, as if such acts or omissions were the acts or omissions of Supplier and as if all references in this Article 36 to Supplier were references to its employees and its subcontractors of any tier; and (c) it shall notify Cimarron in writing if, at any time during the term of the applicable Order, it has failed to comply or is otherwise unable to comply with this Article 36.
35.2 Supplier shall not under any circumstances whatsoever offer, promise or make any gift, payment, loan, reward, inducement, benefit or other advantage to any of Cimarron’s directors, officers, employees, contractors or agents that (i) is above a nominal value of two hundred US Dollars ($200) or its equivalent in local currency, or any limit established by the country where the Services are provided and/or the Products delivered; or in any manner that is deemed excessive, lavish or extravagant; or (ii) in the case of an event (including sporting or other entertainment events), where Supplier does not attend.
35.3 Supplier warrants and undertakes that it has not and will not make, offer, promise, receive, request, authorize or accept any Improper Payment whether directly, indirectly or through any Person or entity to influence an act of a Government Official, Public Body and/or Person or to obtain, maintain, retain business, or gain an improper advantage from the Government Official and/or Person.
35.4 Supplier also warrants and represents, that: (a) it is not the subject of any judicial or quasi-judicial investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence involving bribery, corruption, fraud, dishonesty or breach of trade control regulation; (b) it is not listed by any government agency or development bank as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in procurement programs or contracts run or offered by such agency or development bank; (c) unless disclosed in writing to Cimarron, (i) it is not related to a Government Official or Close Family Member; (ii) no Government Official or Close Family Member owns or possesses, directly or indirectly, shares or any other beneficial interest in Supplier (other than through ownership of publicly traded securities that is not sufficient to constitute a controlling interest), no Government Official or Close Family Member is a director, agent, consultant or representative of Supplier, or has a direct or indirect interest in Supplier or in the applicable Order and (iii) it has no active political role in the countries where the Order will be performed.
35.5 Supplier shall maintain accurate records of any payment or advantage made or given to anyone on behalf of or for the benefit of Cimarron, along with any supporting documents (including receipts and purposes of payments) for a period of up to five (5) years after the completion or cancellation/termination of any Order, and shall not falsify, alter, cover up, forge or disguise any payment, authorization or advantage made or given to anyone on behalf of or for the benefit of Cimarron.