and its Affiliates:
Flare Industries, Inc. d/b/a Aereon
HY-BON Engineering Co., Inc.
All quotations (offers) and sales for goods and/or services (collectively, the "Work") made by, or orders or offers for Work made to, Cimarron Energy Inc. or its affiliates (“CONTRACTOR”) by purchaser (“COMPANY”) are based upon and conditioned upon acceptance of the following terms and conditions. No provision, printed or otherwise, contained in any order, acceptance, confirmation, or acknowledgment that is inconsistent with, different from, or in addition to these Standard Terms and Conditions is accepted by CONTRACTOR, unless specifically agreed to in writing. Any and all Work is provided by CONTRACTOR only under the following Terms and Conditions, and any offer or order by COMPANY for any Work shall constitute COMPANY’s acceptance of these Terms and Conditions in their entirety. In the event of any conflict between or among the terms and conditions of these Standard Terms and Conditions, any Order, or any Exhibit to any such Order, the conflict shall be resolved by reference to such documents in the following order of priority of interpretation: (i) these Standard Terms and Conditions; (ii) any Exhibit; and (iii) any Order. COMPANY and CONTRACTOR further acknowledge and agree that the obligations and liabilities of the CONTRACTOR are several only, and will not be, nor construed to be, either joint with any CONTRACTOR Affiliate or joint and several with any CONTRACTOR Affiliate.
1. Quotations; Terms of Payment; Invoices; Due Date:
(a) CONTACTOR’s quotations are valid for thirty days (30) from the date of the quotation unless otherwise stated. The latest quotation supersedes all previous quotations or correspondence concerning the transaction. The CONTRACTOR’s quotations contain proprietary information of CONTRACTOR (which is subject to Section 14 herein) and are provided to COMPANY with the understanding that the information will be used by COMPANY solely for purposes of internal evaluation. The CONTRACTOR’s quotations and the proprietary information contained therein may not be disclosed by the COMPANY to any third party or used in the preparation of any request for quotation for any work similar to, or as a substitution for, the Work quoted by the CONTRACTOR. COMPANY shall pay CONTRACTOR pursuant to the prices and rates set forth in the applicable Order, or, absent such agreement, pursuant to CONTRACTOR’S standard prices and rates. CONTRACTOR shall invoice COMPANY on a monthly basis for Work performed. Payment in full for each invoice shall be due and made by COMPANY to CONTRACTOR within thirty (30) calendar days of the applicable invoice date. Progress payments will apply to any COMPANY’s purchase(s) where the order(s) total exceeds $100,000.00. Payment percentages shall be invoiced as follows: (i) 50% upon order acceptance and (ii) the final 50% prior to shipment. CONTRACTOR may invoice COMPANY upon completion of work to original specifications; subject to Section 2(d), if Change Order received after completion, charges for Change Order may be invoiced separately. Partial shipments of parts issued under a single Purchase Order may be invoiced separately by COMPANY as needed. If COMPANY defers delivery upon Notice of Readiness, CONTRACTOR may bill and hold, transferring title and risk of loss to COMPANY. Payment terms for international orders (orders outside of the United States) will be agreed to in the respective bid packages. Should COMPANY require CONTRACTOR to submit field tickets or sales invoices for approval prior to invoicing, COMPANY shall approve or deny within three (3) business days of presentation, or the same shall be deemed approved. Any disputes to CONTRACTOR’s invoice shall be made in writing within ten (10) days of receipt. Disputes do not affect payment terms for non-disputed amount, and payment of disputed amount shall be due no later than five (5) business days upon resolution.
(b) If COMPANY fails to pay the amounts owed hereunder when due, COMPANY shall also pay to CONTRACTOR interest thereon from the date thereof to the date of payment at a rate equal to the lesser of (i) 18% per annum or (ii) the maximum rate permitted by applicable law. CONTRACTOR, at its sole option, and without incurring any liability, may suspend its performance until such time as the overdue payment is made or CONTRACTOR is provided assurances, adequate in CONTRACTOR’s sole discretion, that the payment shall be promptly made. In the event of such suspension of performance by CONTRACTOR, there shall be an equitable adjustment made to the delivery schedule and order price reflecting the duration and cost resulting from such suspension. Payments due hereunder shall in no event be subject to set-off with any other order or business arrangement. Waivers of lien by CONTRACTOR with respect to payment due to CONTRACTOR for Work provided by CONTRACTOR under an Order shall be contingent upon CONTRACTOR receiving in full all payments due hereunder. COMPANY shall pay to CONTRACTOR for all costs and expenses related to the collection of any past due amounts, including without limitation, reasonable attorneys’ fees, and expenses. COMPANY shall pay CONTRACTOR for all applicable sales and use taxes related to the Work.
2. Shipping Terms; Termination; Change:
(a) The shipping terms for any goods shall be EX WORKS CONTRACTOR’S manufacturing facility (per the International Chamber of Commerce’s INCOTERMS 2020), unless otherwise agreed by CONTRACTOR in writing. If the COMPANY requests CONTRACTOR to arrange for shipment of any goods or any parts thereof, COMPANY shall reimburse CONTRACTOR for all freight, insurance and other shipping-related costs and handling fees for such shipment. If the COMPANY has not issued inspection or shipping instructions by the time the goods are ready for shipment, CONTRACTOR may select any reasonable method of shipment, without liability by reason of its selection. Shipments made on COMPANY’s behalf shall be insured at COMPANY’s expense. Shipment of goods held by reason of COMPANY’s request or inability to receive the goods will be at the COMPANY’s risk and expense. Timely delivery of the goods shall be contingent, in part, upon, CONTRACTOR’s receipt, within two weeks of the respective initial submittal, of all of the final customer approvals of drawings and other documents requiring customer approvals and CONTRACTOR’s receipt of the order containing all of the mutually agreed upon terms and documents by a date no later than that set forth in the CONTRACTOR’s proposal.
(b) If COMPANY sends written notice to cancel an order, said notice will be effective upon receipt. COMPANY will be responsible for the total cost of the products produced to date. An additional cancellation charge of 50% of the unfilled order value will apply to orders manufactured to COMPANY specifications.
(c) Either Party may terminate an Order for Work upon written notice to the other Party if the other Party has failed to cure a default within the appropriate cure period set forth in Section 8. Either Party may also terminate an Order for Work upon written notice to the other Party if the other Party (i) makes a general assignment for the benefit of its creditors; (ii) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it; (iii) seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization; or (iv) 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 such Party’s property or providing for the liquidation of such Party’s property or business affairs, and such decree is not vacated within 60 calendar days.
(d) No material modification or change to the provisions of an Order for Work (“Change Order”) shall be valid unless signed by both Parties. If any Change Order causes an increase in the cost, or the time required for performance, or otherwise affects any other provision of the Order for Work, an equitable adjustment shall be made.
3. Title to Certain Goods; Risk of Loss: Title to all goods furnished by CONTRACTOR and incorporated or intended to be incorporated into the Work shall transfer to COMPANY upon full and complete payment to CONTRACTOR for such Work. Notwithstanding the foregoing, and subject to bill and hold provisions in Section 1(a), the risk of loss of such goods shall transfer to COMPANY upon delivery. Upon investment of title of the Work in and to COMPANY, the Work shall be the sole tangible personal property of the COMPANY. However, COMPANY’s rights in such Work do not include and specifically exclude any intangible or Intellectual Property Rights of CONTRACTOR or of any third party embodied, contained, referenced, described, or disclosed therein except as otherwise provided in this Section 3. However, CONTRACTOR grants to COMPANY a personal, perpetual, nonexclusive, worldwide, royalty free license to use the CONTRACTOR's Intellectual Property Rights embodied, contained, referenced, described, or disclosed in such Work solely for the purpose to operate and maintain the Work provided by CONTRACTOR pursuant to the Order. “Intellectual Property Rights,” for the purposes of Section 3, means all intellectual property rights, including patents, copyright, designs, trade or service marks, semiconductor topography rights, database rights, rights in confidential information, including know-how and trade secrets, moral rights or other similar rights in any country (all whether or not registered, including all applications for any of them and all equivalent rights in all parts of the world) and all rights of confidence, whenever and however arising for their full term and including renewals and extensions.
4. Limited Warranties:
(a) Each Party represents and warrants that (i) it has the right, power and authority to enter into the Order for Work and to fully perform its obligations under such Order; (ii) the entering into and performance of the Order for Work by it does not violate, conflict with, or result in a material default under any other contract or agreement to which it is a party, or by which it is bound; and (iii) it will comply with all applicable laws, regulations, rules and orders in all material respects.
(b) COMPANY warrants to CONTRACTOR that, during the term of the Order for Work: (i) COMPANY and its employees, CONTRACTOR and its agents will fully cooperate with CONTRACTOR to provide CONTRACTOR and its employees, CONTRACTORs, vendors and agents with all necessary and reasonable access to COMPANY’s applicable premises and sites; and (ii) COMPANY’S operations will be conducted in a commercially safe and reasonable manner at all COMPANY premises and sites to which CONTRACTOR and its employees, CONTRACTORs, vendors and agents will need access in order to perform the Work.
(c) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4(d), THE WORK SHALL BE PROVIDED “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, CONTRACTOR DENIES AND DISCLAIMS ALL IMPLIED AND ALL STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUALITY OR NON-INFRINGEMENT AND ALL OTHER WARRANTIES OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS SECTION. CONTRACTOR DOES NOT WARRANT THAT THE WORK WILL BE ERROR-FREE. CONTRACTOR SHALL HAVE NO LIABILITY FOR THE DESIGN OR ENGINEERING OF THE WORK IF PERFORMED TO COMPANY SPECIFICATIONS OR DESIGN, EVEN THOUGH CONTRACTOR MAY HAVE PARTICIPATED IN ITS DEVELOPMENT, NOR FOR ANY COMPANY-FURNISHED MATERIALS. COMPANY ACKNOWLEDGES AND AGREES THAT COMPANY HAS SOLE RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF THE WORK FOR ITS OPERATIONS AND THE RESULTS AND DECISIONS FROM ITS USE THEREOF.
(d) CONTRACTOR warrants:
(e) In addition to the other terms and conditions set forth herein, all Work provided by CONTRACTOR related to the installation, testing, commissioning, or maintenance of the Work at the COMPANY’s premises or premises nominated by COMPANY shall be subject to the quoted terms and to the following additional terms and conditions:
(a) FOR PURPOSES OF THESE STANDARD TERMS AND CONDITIONS, THE TERM "CONTRACTOR GROUP" IS USED AS A REFERENCE INDIVIDUALLY AND COLLECTIVELY FOR CONTRACTOR AND ITS PARENT, SUBSIDIARY AND AFFILIATED COMPANIES, CONTRACTOR'S CONTRACTORS AND SUBCONTRACTORS OF ALL TIERS AND ITS AND ALL OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSIGNS, INVITEES, REPRESENTATIVES, ANY OF THEIR SPOUSES, RELATIVES, DEPENDENTS, OR ESTATES, AND THE SUBROGEES OF ALL SAID PARTIES. SIMILARLY, THE TERM "COMPANY GROUP" IS USED AS A REFERENCE INDIVIDUALLY AND COLLECTIVELY FOR COMPANY AND ITS PARENT, SUBSIDIARY AND AFFILIATED COMPANIES, COMPANY'S CONTRACTORS AND SUBCONTRACTORS (WITH THE EXCEPTION OF CONTRACTOR) OF ALL TIERS AND ITS AND ALL OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSIGNS, INVITEES, REPRESENTATIVES, ANY OF THEIR SPOUSES, RELATIVES, DEPENDENTS, OR ESTATES, AND THE SUBROGEES OF ALL SAID PARTIES.
(b) CONTRACTOR SHALL BE SOLELY RESPONSIBLE FOR AND AGREES TO RELEASE, DEFEND AND INDEMNIFY THE COMPANY GROUP FROM AND AGAINST, AND HOLD EACH OF THEM HARMLESS FROM, ANY AND ALL CLAIMS AND LOSSES ARISING OUT OF OR RELATED TO ANY DEATH OR BODILY INJURY OR DISABILITY, OR ANY PROPERTY DAMAGE OR PROPERTY LOSS, OF ANY OF THE CONTRACTOR GROUP AND ARISING OUT OF OR RELATED TO THE ORDER OF WORK OR THE WORK. CONTRACTOR'S OBLIGATIONS IN THE PRECEDING SENTENCE SHALL APPLY REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF WARRANTY, OR OTHER FAULT OF ANY OF THE COMPANY GROUP, THE UNSEAWORTHINESS OR UNAIRWORTHINESS OF ANY VESSEL OR CRAFT, A PREEXISTING CONDITION, BLOWOUT, EXPLOSION, OR FIRE.
(c) COMPANY GROUP SHALL BE SOLELY RESPONSIBLE FOR AND AGREES TO RELEASE, DEFEND AND INDEMNIFY THE CONTRACTOR GROUP FROM AND AGAINST, AND HOLD EACH OF THEM HARMLESS FROM, ANY AND ALL CLAIMS AND LOSSES ARISING OUT OF OR RELATED TO ANY DEATH OR BODILY INJURY OR DISABILITY, OR ANY PROPERTY DAMAGE OR PROPERTY LOSS, OF ANY OF THE COMPANY GROUP AND ARISING OUT OF OR RELATED TO THE ORDER OF WORK OR THE WORK. COMPANY'S OBLIGATIONS IN THE PRECEDING SENTENCE SHALL APPLY REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF WARRANTY, OR OTHER FAULT OF ANY OF THE CONTRACTOR GROUP, THE UNSEAWORTHINESS OR UNAIRWORTHINESS OF ANY VESSEL OR CRAFT, A PREEXISTING CONDITION, BLOWOUT, EXPLOSION, OR FIRE.
(d) CONTRACTOR will, at its expense, defend and indemnify COMPANY from any suit or proceeding brought against COMPANY based on a claim that the goods manufactured and furnished by CONTRACTOR under the Order constitute an infringement of any United States patent, if CONTRACTOR is notified promptly in writing and given authority, information, and assistance for the defense of the suit or proceeding. Defense and settlement of any claim shall be within CONTRACTOR’s sole discretion. Should it be held that the goods constitute infringement and the use of the goods is enjoined, CONTRACTOR will, at its own expense and discretion, either procure for COMPANY the right to continue using the goods, replace the goods with non-infringing goods, modify the goods to become non-infringing, or remove the infringing goods and refund the price paid for the respective goods. CONTRACTOR does not accept any liability for infringement of any chemical, process, or flow patents, or for goods designed for or used in connection with such chemical, process, or flow patents. COMPANY will indemnify CONTRACTOR from any suit or proceeding brought against CONTRACTOR by any third party based on claims that the goods provided to COMPANY infringe any such patent, or with respect to any goods designed and manufactured in accordance with designs furnished by COMPANY. CONTRACTOR’s indemnity and defense obligations under this Section 5.4 shall not apply or extend to any claims, suits, proceedings, or expenses based upon the modification or enhancement of the Work by COMPANY, upon the manufacture of the goods according to the designs furnished and required by the COMPANY, or upon the use of the Work in combination with other goods, services, or technology not provided by CONTRACTOR, if such claims, suits, proceedings, or expenses would not have occurred but for such modification, enhancement, requirement, or combination.
6. Disclaimer of Consequential Damages; Limitation of Liability:
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT LOSS OR DAMAGE OR ANY PUNITIVE DAMAGE OF ANY KIND OR CHARACTER, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF PRODUCT, LOSS OF EFFICIENCY AND LOSS OF PRODUCTION, IRRESPECTIVE OF NEGLIGENCE, ARISING OUT OF THE WORK OR THE ORDER FOR WORK.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE TOTAL LIABILITY OF CONTRACTOR UNDER ANY ORDER FOR WORK, (IRRESPECTIVE OF WHETHER CONTRACTOR MAY HAVE BEEN OR ALLEGED TO HAVE BEEN NEGLIGENT OR OTHERWISE AT FAULT AND IRRESPECTIVE OF INSURANCE COVERAGE) SHALL BE LIMITED TO THE PRICE ALLOCABLE TO THE ORDER FOR THE WORK AND, IN NO EVENT WILL CONTRACTOR’S AGGREGATE LIABILITY EXCEED THE NET AMOUNT PAID BY COMPANY TO CONTRACTOR FOR THE WORK. COMPANY AGREES TO RELEASE, INDEMNIFY AND HOLD CONTRACTOR HARMLESS FROM AND AGAINST ANY SUCH LIABILITY IN EXCESS OF SUCH AMOUNTS. COMPANY ALSO AGREES TO PROVIDE SUFFICIENT INSURANCE (OR SHALL SELF-INSURE) FOR THE BENEFIT OF EACH OF THE PARTIES HERETO AS SHALL BE NECESSARY TO PROTECT BOTH COMPANY AND CONTRACTOR FROM ANY LIABILITY AS ALLOCATED TO COMPANY PURSUANT TO THESE STANDARD TERMS AND CONDITIONS.
(a) Each Party shall purchase and maintain in full force and effect (with underwriters having an AM Best A- rated as a minimum), for the term of the Order for Work and two years after the termination hereof, policies of insurance covering the terms and conditions described in Sections 7.2 - 7.4. Except for the worker’s compensation insurance policy, all such policies shall name the other Party as an additional insured.
(b) Worker's Compensation & Employers' Liability Insurance:
(c) Commercial General Liability Insurance:
(d) Automobile Liability Insurance:
8. Default: If either Party defaults in the performance of any of its obligations under the Order for Work (subject to the provisions of Section 10), the non-defaulting Party may notify the defaulting Party of the default and the defaulting Party shall have 30 calendar days to remedy the default, provided, however, that with respect to a payment default, the defaulting Party shall have 10 calendar days to remedy the default. If such default is not cured within the applicable period, then the non-defaulting Party shall have the option to immediately terminate the Order for Work upon written notice to the other party. This remedy shall not be exclusive, however, and the exercise thereof shall not be deemed to constitute a waiver of any other rights or remedies that either Party may have under applicable law in the event of the other Party’s default.
9. Force Majeure: Any delays in or failures by either Party in performing its obligations hereunder (other than obligations to pay money), shall not constitute default hereunder or give rise to any claims for damages, if and to the extent that such delays or failures of performance of the Work are caused by occurrences of Force Majeure. For purposes of these Standard Terms and Conditions, “Force Majeure” includes, but is not limited to, Acts of God, wars or warlike action (whether actual or impending), arrests and other restraints of government (civil or military), terrorism, blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, sabotage, tropical storms and hurricanes, civil disturbances, tidal waves, explosions, shortages of suppliers, confiscation or seizure by any government or other public authority, and any other causes or events that are not reasonably within a Party’s control. The Party experiencing an occurrence of Force Majeure shall notify the other Party with reasonable promptness of the existence of any such Force Majeure and the probable duration thereof and shall provide the other Party from time to time with information regarding the same. The Party experiencing an occurrence of Force Majeure shall take all commercially reasonable actions to remove the cause of the occurrence of Force Majeure.
10. Assignment; Successors; Third Parties:
Neither Party shall assign or transfer all or any portion of the Order for Work to any third party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that a Party shall be entitled to transfer or assign all or any portion of the Order for Work without such consent: (i) to any of its affiliates or subsidiaries; or (ii) to the purchaser of all or substantially all of the assets of the other Party. Subject to the foregoing, the Order for Work shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. Nothing in these Standard Terms and Conditions or in the Order for Work is intended to confer any liabilities, duties, rights, benefits or obligations hereunder upon any person or entity other than the Parties hereto and their respective permitted successors and assigns and expressly approved affiliates.
11. Waiver: No benefit or right accruing to either Party under these Standard Terms and Conditions or under the Order for Work shall be waived unless the waiver is in a writing signed by both Parties to the Order for Work. The failure of either Party to exercise any of its rights under the Order for Work or these Standard Terms and Conditions shall in no way constitute a waiver of any of those rights, nor shall such failure excuse the other Party from any of its obligations under the Order for Work or these Standard Terms and Conditions.
12. Relationship of the Parties: In the performance of the Work, CONTRACTOR is an independent CONTRACTOR. CONTRACTOR agrees that all persons engaged by CONTRACTOR to perform the Work, whether CONTRACTOR’s employees or subcontractors are not the employees of COMPANY. CONTRACTOR hereby agrees to immediately reimburse COMPANY for all taxes, interest and penalties required to be paid by COMPANY under any applicable laws covering CONTRACTOR’S employees or subcontractors for performance of the Work.
13. Audit: CONTRACTOR shall maintain a true and correct set of records pertaining to Work performed and all transactions directly related thereto. CONTRACTOR agrees to retain all such records for a period of not less than two years from the end of the calendar year in which the Work was performed. COMPANY may conduct a supervised audit during regular business hours after reasonable prior written notice to CONTRACTOR of such audit, within such two-year period. The audit privileges granted to COMPANY under this Section 13 are limited strictly to verifying whether CONTRACTOR has been compliant with the Order for Work and these Standard Terms and Conditions and, therefore, shall be narrowly construed and not to be used to obtain any proprietary or privileged information from CONTRACTOR such as, without limitation, CONTRACTOR’s financial margins under a firm fixed price agreement for the Work, CONTRATOR’s methods of operations, or any details and/or breakdowns of costs incurred by CONTRACTOR, except for reimbursable costs allowable under an Order for Work. If an audit is commenced within such two-year period, the books and records shall be maintained by CONTRACTOR for as long as reasonably required to complete the audit.
(a) The phrase "Confidential Information" shall mean any information disclosed by one Party to the other in connection with the Order for Work and the performance of the Work, including, without limitation, all information, documents, drawings, reports, manuscripts, text, drawings, photographs, video recordings, computer software, knowledge, data or other information relating to the Disclosing Party’s products, processes, know-how, designs, formulae, test data, customer lists, business plans, marketing plans, strategies, materials, goods, equipment, and pricing and availability of any services or goods, that is in written, graphic, machine readable or other tangible form and is marked "Confidential", "Proprietary" or in some other manner to indicate its confidential nature. The phrase “Confidential Information” shall not include information that: (i) is or becomes publicly available through no breach of this Section 14 by the Receiving Party; (ii) is already in the Receiving Party's possession at the time of its disclosure by the Disclosing Party; (iii) is disclosed to the Receiving Party by a third party who, to the Receiving Party's knowledge, is not prohibited from disclosing the information pursuant to a confidentiality agreement with the Disclosing Party; (iv) is intentionally or purposely disclosed, exchanged or transmitted without restriction of confidentiality by Disclosing Party to any third party; (v) is independently developed by Receiving Party without reference or exposure to the confidential information received from Disclosing Party or (vi) is required to be disclosed to a governmental agency or entity, or by law or legal process, by advice of Receiving Party’s legal counsel.
(b) Each Party (a “Receiving Party”) shall treat as confidential all Confidential Information received from or through the other Party (a “Disclosing Party”), shall not use such Confidential Information except as expressly permitted under these Standard Terms and Conditions, and shall not disclose such Confidential Information to any third Party without the Disclosing Party's prior written consent, provided, however, that a Receiving Party may disclose the Disclosing Party’s Confidential Information to any of Receiving Party’s affiliates, directors, officers, employees, attorneys, accountants, representatives, agents, consultants, advisors, partners, prospective partners, lenders, and prospective lenders (collectively, “Representatives”) on a reasonable need to know basis, provided that each Representative is apprised of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section. Each Receiving Party shall be liable for any breach of this Section by any of its Representatives. Each Receiving Party shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event with less than reasonable care, to prevent the disclosure of Confidential Information disclosed to it or its Representatives by the Disclosing Party or its Representatives under the Order for Work or these Standard Terms and Conditions.
(c) Unauthorized use by a Receiving Party of the Disclosing Party's Confidential Information could diminish the value of such information. Therefore, if a Receiving Party breaches any of its obligations with respect to confidentiality or uses any of Disclosing Party’s Confidential Information in a manner that is not specifically authorized under these Standard Terms and Conditions, then the Disclosing Party shall be entitled to equitable relief to protect its interest therein, including but not limited to, injunctive relief. The rights and remedies of a Disclosing Party pursuant to this Section are cumulative to, and shall not be deemed to exclude, any other right or remedy that such Disclosing Party may have pursuant to these Standard Terms and Conditions or otherwise, at law or in equity.
(d) Notwithstanding anything to the contrary herein, any Party (and its respective employees, representatives or other agents) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of any transaction between the Parties and all materials of any kind (including opinions or other tax analyses) that are provided to such Party relating to such tax treatment and tax structure.
15. Entire Agreement: Except as specifically agreed in writing by the Parties, these Standard Terms and Conditions supersede all negotiations, understandings and agreements between the Parties and constitutes the entire understanding and agreement between the Parties relative to the Work. No supplement, modification or waiver of these Standard Terms and Conditions or any Order shall be binding unless executed in writing by both Parties.
16. Notices: Except as expressly provided otherwise herein, any notice from one Party to the other hereunder shall be given in writing. Any notice, payment or invoice hereunder shall be delivered to the contact person at the address of the Parties set forth on the Order for Work pursuant to these Standard Terms and Conditions, until notice is given in accordance with this Section by either Party to the other Party, in writing, of a change of contact person or address. Notice required to be given under these Standard Terms and Conditions shall be deemed given and delivered (i) upon receipt or five days after deposited in the U.S. Mail whichever is earlier, postage paid, via certified mail, return receipt requested, (ii) upon transmission via facsimile or email evidenced by the sender’s electronic mail or fax machine-generated confirmation of transmission, (iii) on the date of delivery by a reputable express delivery service, or (iv) when delivered in person.
17. Governing Law; Waiver of Jury Trial; Exclusive Forum and Jurisdiction: These Standard Terms and Conditions and the Order for Work shall be governed by and interpreted solely in accordance with the laws of the State of Texas, U.S.A., without giving effect to any conflict of law rules. Likewise, in the event of any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof and/or the Parties ' relationship arising therefrom, the Parties agree first to try in good faith to settle the dispute by mediation and any applicable statute of limitations shall be tolled until ten (10) days after the mediation has concluded If the matter is not resolved through mediation within thirty (30) days of serving notice of intent to mediate, then the parties shall submit their dispute to binding arbitration before one arbitrator. The mediation and arbitration shall be held in Houston, Texas in proceedings administered by and before, and in accordance with, the rules of, the American Arbitration Association. Judgment on the arbitrator's award may be entered by and in any Court having jurisdiction thereof. Any monetary award issued by the arbitrator shall be payable in U.S. Dollars. The arbitrators are not empowered to award consequential, indirect, special, punitive, or exemplary damages, and each Party hereby irrevocably waives any damages in excess of actual damages. In addition to the rights and remedies provided herein, the parties may seek injunctive and other provisional emergency relief from a Court in aid of arbitration or mediation and any such Court action shall be brought exclusively before a State Court located in Harris County, Texas or the United States District Court for the Southern District of Texas located in Harris County, Texas and each party irrevocably consents to the exclusive jurisdiction, and waives any objection to the venue, of said Court. Each party consents to service of process in the commencement of any action, mediation or arbitration proceeding by overnight mail delivery service with an additional copy sent by first-class mail, postage pre-paid, to the parties ' respective addresses as provided in this Agreement.
18. Attorneys' Fees: In the event of any action or suit based upon or arising out of any alleged breach by any Party of any representation, warranty, or agreement in the Order for Work or these Standard Terms and Conditions, the prevailing Party shall be entitled to recover reasonable attorneys' fees and other costs of such action or suit from the other Party.
19. Section Headings, Construction: The headings of Sections in these Standard Terms and Conditions are provided for convenience only and will not affect its construction or interpretation. All references to "Section" or "Sections" refer to the corresponding Section or Sections of these Standard Terms and Condition. The Parties have been given an opportunity to negotiate these Standard Terms and Conditions. In the event an ambiguity or question of intent or interpretation arises, these Standard Terms and Conditions shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of these Standard Terms and Conditions.
20. Severability: If any term of these Standard Terms and Conditions or the Order for Work is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term. If application of this Severability provision should materially and adversely affect the economic substance of the transactions contemplated hereby, the Party adversely impacted shall be entitled to compensation for such adverse impact, provided the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the Party seeking such compensation.