and its Affiliates:
Flare Industries, Inc. d/b/a Aereon
HY-BON Engineering Co., Inc.
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.
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 This Order may be withdrawn or modified by Cimarron at any time before it is accepted.
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.
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.
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.
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.
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 the 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.
11.) Cimarron’s Locations and Indemnification.
13.) Cimarron’s Materials and Equipment.
16.) Compliance with Supplier Code and Conduct and other Cimarron Requirements.
17.) Health, Safety and the Environment.
21.) Limitation of Action.
23.) Amendment and Modification.
24.) Confidential Information.
25.) Force Majeure.
27.) Relationship of the Parties.
28.) No Third-Party Beneficiaries.
29.) Governing Law.
34.) Attorney’s Fees and Costs.
35.) Business Conduct and Compliance with Laws.