1. PURCHASE ORDER DOCUMENTS AND ACCEPTANCE:
The Purchase Order shall consist of the following documents: (1) the Purchase Order, (2) these Purchase Order Standard Terms and Conditions, and (3) any other attachments, exhibits, specifications or referenced documents (collectively the “Purchase Order”). In the event of a conflict between the terms and conditions contained in any of the above referenced documents, precedence shall be given in the order stated herein. The Purchase Order shall be between TAS Energy Inc. (the “Buyer”) and the seller of the goods, materials, equipment and services listed in the Purchase Order (the “Seller”). Seller shall provide the goods, materials and equipment as set forth in the Purchase Order (the “Goods”), and/or the services set forth in the Purchase Order (the “Services”), the Goods and Services shall collectively be referred to as the (“Work”). Reference in the Purchase Order to any offer, quotation and/or proposal by Seller shall in no way constitute a modification of any of the terms of this Purchase Order. ANY ATTEMPTED ACKNOWLEDGEMENT OF THE PURCHASE ORDER BY SELLER CONTAINING TERMS INCONSISTENT WITH OR IN ADDITION TO THE TERMS OF THIS PURCHASE ORDER IS NOT BINDING UNLESS SPECIFICALLY ACCEPTED BY BUYER IN WRITING. Buyer and/or Seller shall modify the Purchase Order only if they agree to do so in writing.
2. DELIVERY OF GOODS/SHIPMENT:
All delivery designations are INCOTERMS 2020. Unless a separate delivery location is set forth in the Purchase Order, all Goods provided under this Purchase Order shall be delivered Free Carrier (“FCA”) to Buyer’s facility at the address indicated. For parts FCA Delivered, TAS Warehouse is open M-Th from 6:30 am to 3:30 pm and Friday from 6:30 am to 2:30 pm CST. Upon shipment, vendor should provide a copy of the packing list with the tracking information to the Buyer via email. Failure to supply the required documentation may result in a delay of parts being received which could also impact payment of invoice. For parts Ex-Works, once parts are packaged or crated accordingly vendor should contact TAS Logistics at with TAS PO number, number of packages/crates and complete weights and dimensions. Unless contrary shipment and/or delivery terms are specifically set forth in the Purchase Order, Seller shall package the Goods according to the commercial standard practices of the industry in order to prevent damage during shipment/delivery and Seller shall use only properly licensed and insurable carriers. If the unloading of Goods at the delivery location will require specialized equipment, Seller shall provide a minimum of forty-eight (48) hours advance written notice to Buyer of the specialized equipment which will be required. If Buyer should need shipment or delivery of the Work delayed for any reason whatsoever, Buyer will direct Seller to (a) store the Goods at Seller’s facility, (b) arrange for storage of the Goods at a location to be determined by Buyer, (c) continue production of any uncompleted Work, and/or (d) delay or discontinue production of any uncompleted Work. Goods shipped to Buyer in advance of schedule without Buyer’s written consent may be returned to Seller at Seller’s expense. Marking Specifications: Shipping box(s) to be marked with TAS PO number; Individual parts are to be marked with TAS part number; TAS part numbers must also be listed on packing lists and invoices; If parts are too small to mark individually, the box or bag must be labeled with TAS part number and quantity; For boxes weighting over 50lbs the box should be attached to the pallet by bolting or strap and shrink wrapped. Parts are to be secure to prevent movement on the pallet; Oversize items that do not fit in a box should be bolted directly to the pallet; Pallet to be of sufficient construction to handle parts shipped; The intent of packaging is to insure parts can be shipped in a safe and secure method avoiding damage.
3. PERFORMANCE OF WORK:
Buyer has provided Seller a schedule of dates the Goods are required to be delivered. It is the Seller's responsibility to perform within this schedule and Seller is aware Buyer will be damaged if the Work and the other documents and/or deliverables of Seller in this Purchase Order are not performed strictly according to the schedule provided herein. Buyer's acceptance of the Work after the stipulated shipping or delivery dates will not waive Buyer's rights with respect to such late shipment or delivery.
Buyer reserves the right to modify the Purchase Order as needed and will advise Seller in writing of any such changes (a “Change”). Within ten (10) days from receipt of Buyer’s request for a Change, Seller shall prepare and submit to Buyer a written estimate of the additional cost and/or time, if any, required to complete the Change, together with an explanation of the basis for such estimate. Buyer shall then inform Seller if Buyer agrees with Seller’s estimate and whether Seller shall proceed with the Change as estimated by Seller. Any claim by Seller for an adjustment to the amount paid by Buyer or the time frame Seller has to provide the Work hereunder must be timely asserted in the written estimate prepared by Buyer to Seller in response to the request for a Change.
Seller’s invoices shall identify the Work performed in the same way as they are described in the Purchase Order, and Seller’s invoice shall further reference Buyer’s Purchase Order Number and Project Number. All invoices must be accompanied by the packing slips and/or PODs signed by Buyer evidencing the delivery of the Goods and/or Services. All invoices shall be sent to the Accounts Payable department at: TAS Energy Inc., 6110 Cullen Blvd., Houston, TX 77021 or . Payment of invoices is contingent upon receipt by Buyer of all documentation required by the Purchase Order, and the compliance with all terms and conditions of the Purchase Order. Invoices must cover only items or portions thereof actually shipped. Any additional duties, penalties or fines resulting from incorrect invoicing will be for the account of Seller. Unless otherwise stated upon the face of the Purchase Order, payment shall be due within forty-five (45) days after Buyer’s receipt of all documentation, data, reports, and delivery of the Work.
The price for the Goods and/or Services set forth in this Purchas Order shall be in U.S. Dollars unless otherwise noted, and shall include all payroll and/or occupational taxes, any value added tax that is not recoverable by Buyer and any other taxes, fees and/or duties applicable to the Goods and/or Services purchased under this Purchase Order; provided, however, than any value added tax that is recoverable by Buyer, state and local sales, use, excise and/or privilege taxes, if applicable, will not be included in Seller’s price but will be separately identified on Seller’s invoice. If Seller is obligated by law to charge any value added and/or similar tax to Buyer, Seller shall ensure that if such value added and/or similar tax is applicable, that it is invoiced to Buyer in accordance with applicable rules so as to allow Buyer to reclaim such value added and/or similar tax from the appropriate governmental authority.
7. PROPRIETARY INFORMATION, CONFIDENTIALITY AND ADVERTISING:
All commercial, financial or technical information in any form that Buyer provides to Seller shall be deemed proprietary and confidential, whether marked confidential or not, and Seller shall not disclose such information to third parties without Buyer’s written consent. All confidential information disclosed by Buyer shall remain the property of Buyer and, upon Buyer’s request, Seller shall return all confidential information to Buyer along with any reproductions, in whole or in part. The confidentiality obligation does not apply to information that is in the public domain through no fault of Seller or to information lawfully within Seller’s possession prior to the date of the Purchase Order, as evidenced by Seller’s written records. Seller shall not advertise or publish that Buyer has contracted to purchase the Work from Seller without Buyer’s written consent.
For Goods. Seller warrants that the Goods (a) have no history of material failure or malfunction, (b) are furnished in strict accordance with the terms, specifications, drawings, designs, descriptions and/or other requirements of the Purchase Order; (c) are fit for the use intended; (d) are new and unrepaired, not used, rebuilt or made from refurbished material unless approved in writing by Buyer in advance; (e) are free from defects in workmanship, materials and design, (f) conform with all applicable product standards; and, (g) have been manufactured, processed, delivered and/or sold in full compliance with all applicable laws, acts, rules, orders and regulations. The warranties set forth herein shall apply for twelve (12) months after first commercial use or eighteen (18) months from shipment, whichever is earlier, plus delays such as those due to nonconforming Goods (the “Goods Warranty Period”). First commercial use means the date on which the plant has successfully passed all performance and operational tests required by Buyer’s customer for commercial operation.
For Services. Seller warrants that Services and/or any deliverables will be (a) provided in strict accordance with the specifications, designs and other requirements (including performance specifications, if any) approved or adopted in this Purchase Order; (b) performed in a competent and professional manner in accordance with the generally accepted standards and practices of Seller’s industry; (c) free from all defects in design, workmanship and material and will be fit for the purpose for which they are purchased; and, (d) have been performed, provided, processed, delivered and/or sold in full compliance with all applicable laws, acts, rules, orders and regulations. The warranties set forth herein shall apply for ninety (90) days after completion of the Services (the “Services Warranty Period”).
Remedies. If any of the Work is found to be defective or otherwise not in conformity with the warranties set forth in this section during the applicable Warranty Period, Buyer may, at its sole discretion, (i) require Seller to inspect, remove, reinstall, ship and repair or replace/re-perform nonconforming Work with goods and/or services that conform to all requirements of this Purchase Order; (ii) take such actions as may be required to cure all defects and/or bring the Work into conformity with all requirements of this Purchase Order, in which event all related costs and expenses (including, but not limited to, material, labor and handling and any required other services) and other reasonable charges shall be for Seller’s account; and/or (iii) reject and return all or any portion of such Work. Buyer shall notify Seller in writing (the “Warranty Notification”) of the defect and/or non-conforming Work. Within seven (7) days following Seller’s receipt of the Warranty Notification, Seller shall commence to diligently remedy the defect or non-conformance at Seller’s sole cost. In the event of repair or replacement of Goods, the above warranty shall apply to the repaired or replaced work for a period of twelve (12) months after such repair or replacement or until the expiration of the original warranty period, whichever is later. In the event of repair or replacement of Services, the above warranty shall apply to the repaired or replaced work for a period of sixty (60) days after such repair or replacement or until the expiration of the original warranty period, whichever is later. Buyer and/or the ultimate owner of the Work shall have the right to enforce the foregoing warranties. Seller’s liability shall extend to and include all costs associated with the repair and/or replacement of the Work, damage to any proximate equipment as a result of any defects of the Goods or re-performance of the Services, and any shipping costs associated with repair and/or replacement. Any attempt by Seller to limit, disclaim or restrict any such warranties or any remedies of Buyer, by acknowledgement or otherwise, in accepting or performing the Purchase Order, shall be null, void and ineffective without Buyer’s written consent.
SELLER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, LIABILITIES OR DAMAGES (INCLUDING ATTORNEYS’ FEES AND COSTS OF LITIGATION) OF ANY KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH (I) BREACH OF ANY OF SELLER’S REPRESENTATIONS AND WARRANTIES CONTAINED IN THE PURCHASE ORDER; (II) LOSS, DESTRUCTION OR DAMAGE TO PROPERTY; AND (II) BODILY INJURY, SICKNESS, DISEASE OR DEATH.
10. PATENT, TRADEMARKS AND COPYRIGHTS:
Seller warrants that Buyer’s use or sale of the Goods, or its use or sale of products provided in connection with the Work, shall not infringe on any patent, trademark, copyright or other intellectual property right or interest. Seller shall hold harmless, defend and indemnify Buyer of any claim for, or cost damage or expense incurred or resulting from, any such infringement. In case use of said Goods is enjoined, Seller shall, at its own expense and at the election of Buyer, remedy any infringement by correction, replacing with non-infringing goods or securing approval to use, at Seller’s sole cost, or remove said Goods and refund the purchase price, the transportation and installation costs associated therewith and any costs associated with removal of the infringing Goods.
11. FORCE MAJEURE:
A force majeure delay shall mean any delay or other unforeseeable causes beyond the reasonable control of the party affected; provided that any such delay is not caused, in whole or in part, by the acts or omissions of the party so delayed and further provided that such party is unable to make up for such delay with reasonable diligence and speed. If any such cause delays Seller’s performance, the delivery date or time for completion may be extended by a period of time reasonably necessary to overcome the effect of such delay; however, Seller shall take all reasonable measures to mitigate the effects of the force majeure event and to minimize such delay. A party affected by a force majeure event shall notify the other party of such force majeure event within forty-eight (48) hours of its knowledge of such event for the event to be considered a bona fide force majeure event.
12. TERMINATION FOR CONVENIENCE:
Buyer reserves the right to terminate the Purchase Order, or any part thereof, for Buyer’s sole convenience. In the event of such termination, Buyer will pay Seller the value of Work provided to Buyer, plus reasonable documented costs of Seller resulting directly from termination. Upon payment of such amounts, title to the Work and all materials related thereto shall vest with Buyer and Seller shall have no further recourse against Buyer for the termination of this Purchase Order.
13. TERMINATION FOR CAUSE:
Buyer may terminate the Purchase Order, or any part thereof, for cause including, but not limited to the following: (a) any default or breach of any of the terms and conditions of the Purchase Order by Seller, (b) Seller’s failure to ship or deliver any or all of the Work at the stipulated time, (c) Seller furnishing defective Work or Work that does not conform to the terms of the Purchase Order, (d) Seller’s failure to provide Buyer, upon request, a reasonable assurance of future performance, or (e) Seller filing for bankruptcy, dissolution, or the suspension of payments by judicial decree, if Seller does not cure such failure within a period of five (5) days or such longer period as Buyer may authorize in writing after the date such notice is sent to Seller. In the event of termination for cause and in addition to any other rights or remedies Buyer may have by law or in equity, Buyer shall have the option to purchase the Work from a third party or remove the Goods related thereto from Seller’s premises and complete the manufacture by any means; in which case Seller shall be liable to Buyer for any costs, expenses and damages sustained by Buyer in connection therewith.
14. COMPLIANCE WITH LAW AND STANDARDS:
Seller certifies that, unless specifically exempted, all Work furnished under the Purchase Order have been manufactured, processed, delivered and/or sold in full compliance with all applicable laws, acts, rules, orders and regulations.
15. TITLE AND RISK OF LOSS:
With respect to Goods, title to the Goods shall transfer to Buyer upon the earlier to occur of (i) receipt of Goods by Buyer or its agent; and (ii) Seller’s receipt of compensation for the Goods, or any part thereof, in accordance with the payment terms set forth in the Purchase Order. Notwithstanding the above, risk of loss of the Goods shall remain with Seller until delivered to Buyer (whether at Buyer’s Facility or to a different address specified in the Purchase Order). With respect to Services, title shall transfer as Services are performed.
Buyer’s failure to exercise or enforce any right in the Purchase Order, or any other right or privilege under law, or Buyer’s waiver of any breach by Seller shall not constitute a waiver or modification of any terms, conditions, privileges or rights whether of the same or similar type, unless Buyer gives such waiver in writing.
Seller will furnish, upon Buyer’s request, waivers by Seller of any lien rights in connection with the performance of this Purchase Order and will indemnify Buyer against all costs, loss or liability incurred by Buyer as a result of any failure by Seller to comply with this provision. Upon payment by Buyer, Seller waives and relinquishes all existing and future liens and claims (statutory or otherwise) for the Work and warrants that the Work will be free and clear of all liens, claims or encumbrances of any kind.
18. PAYMENT OF BUYER’S CLAIMS:
All claims for money due, or to become due to Buyer, shall be subject to offset against payments due to Seller.
19. APPLICABLE LAW AND VENUE:
This Purchase Order shall in all respects be governed and interpreted in accordance with the substantive law of the state of Texas, excluding its conflicts of law provisions. Any dispute arising under or related to this Purchase Order, including any question regarding its existence, validity, or termination, shall be resolved by a court of competent jurisdiction in Harris County, Texas, and each party hereby irrevocably and unconditionally submits to such exclusive jurisdiction and venue. If any action at law or in equity is necessary to enforce or interpret the terms of this Purchase Order, including but not limited to actions to obtain an injunction and/or to defend against claims made by the other party, the prevailing party shall be entitled to reasonable attorneys’ fees and costs in addition to any other relief to which the party may be entitled. THE PARTIES TO THIS PURCHASE ORDER HEREBY WAIVE, RELINQUISH AND FOREVER FOREGO THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS PURCHASE ORDER. The parties exclude application of the United Nations Convention on Contracts for the International Sale of Goods
20. ASSIGNMENT, SUBCONTRACTING AND SUBSTITUTIONS:
All services, materials, manufacturing, fabrication or assembly relating to the Work shall be Seller’s own. Seller shall not substitute materials or services or assign or subcontract the Purchase Order in whole or in part (including Seller’s right to receive payment), without Buyer’s prior written consent. Any substitution, assignment or subcontracting without the prior written approval of Buyer shall be null and void and of no force or effect.
21. OWNERSHIP OF DOCUMENTS:
Title to all drawings, specifications, calculations, technical data and other documents that Seller submits in accordance with the Purchase Order shall vest with Buyer and Buyer shall have the right to use such materials for any purpose.
Seller shall obtain and keep in force, for the benefit of Seller and Buyer, insurances in forms and amounts as are carried by responsible suppliers engaged in the same trade under similar circumstance. In addition, Seller shall, at minimum, keep in force insurance in the following forms and amounts: (i) Comprehensive General Liability insurance with limits of not less than $1,000,000 per occurrence for bodily injury or death, and $1,000,000 per occurrence property damage plus Contractual Liability coverage; (ii) automobile liability insurance with limits of not less than $1,000,000 for each person, $1,000,000 for each occurrence and $1,000,000 for property damages; (iii) worker’s compensation and Employer’s Liability insurance coverage in accordance with applicable laws; and (iv) Excess Liability Insurance with limits of not less than $3,000,000 per occurrence and in the aggregate. Seller’s insurance policies shall (i) waive any rights of subrogation against Buyer and (ii) name Buyer as an additional insured. Prior to the commencement of Work, Seller shall provide certificates meeting the requirements set forth herein.
23. ENTIRE AGREEMENT:
The Purchase Order shall constitute the entire agreement between Buyer and Seller and shall supersede all prior proposals, negotiations and counterproposals. The invalidity, in whole or in part, of any of the provisions of the Purchase Order shall not affect the remainder of such provisions or any other sections of the Purchase Order.
In order that the parties may fully exercise their rights and fulfill their obligations arising from the performance of the Purchase Order, such provisions of the Purchase Order as are necessary to ensure such exercise or performance shall survive the completion or termination of the Purchase Order for any cause whatsoever.
For the purpose of this clause, a “Government Official” means any employee or officer of a government, including any federal, regional or local department, agency, or enterprise owned or controlled by the government, any political party or official of a political party, any official or employee of a public international organization, any person acting in any official capacity for, or on behalf of such entities, and any candidate for public or political officer. In recognition of the principles of the Foreign Corrupt Practices Act in the United States and/or the OECD Convention on Combating Bribery of Foreign Government Officials in International Business Transactions, each of the Parties hereby represents, warrants and covenants to the other that it has not, and covenants and agrees that it will not, in connection with the performance or subject matter of this Agreement make or promise or offer to make any payment or transfer of anything of value, directly or indirectly: a. to any Government Official; or b. to any other person, while knowing that all or some portion of the payment or thing of value will be offered, given or promised to a Government Official in order to improperly or illegally obtain or retain business or to secure any improper advantage. It is the intent of the Parties that no payments or transfers of value will be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business. This clause will not, however, prohibit normal and customary business entertainment or the giving of promotional items bearing the corporate logo of the Parties or which promote or relate to the performance or subject matter of this Agreement provided such entertainment or promotional items are lawful and of nominal value and properly described in the books and records of the Party.
26. QUALITY MANAGEMENT SYSTEM:
Seller warrants that it has a quality management system that incorporates quality planning, provides a framework for managing the activities that enable Seller to create items and services which consistently satisfy customer, statutory, and regulatory requirements. Seller will provide details of the quality management system and the relevant inspection and or hold points applicable to the Work provided during the manufacturing process and site installation or assembly as appropriate. Buyer will review and approve this plan. Seller documents activities affecting quality in accordance with written manuals, procedures, instructions, specifications, and drawings that contain appropriate criteria for determining whether the prescribed activities have been satisfactorily accomplished. A recognized and registered quality management system will be satisfactory for qualifying as a supplier. At a minimum, Seller’s quality management system will provide a mechanism for factory and or on-site inspection, surveillance, factory acceptance tests, material traceability, and quality checks. Seller shall conduct tests and inspections and provide the inspection records and material test reports to Buyer.
27. DOCUMENT SUBMITTAL:
Seller shall submit all documentation, including but not limited to drawings, inspections and test records, electronically through Buyer’s Document Control process. At a minimum, Seller shall submit all documentation required by Buyer’s Commodity Documentation Requirements as applicable. Each submittal must contain a document number, document title, document revision number, document revision date, project name, project number, vendor name, purchase order number, equipment or tag number, and contact information. All documentation required by this purchase order must be submitted electronically to TAS Document Control at . If multiple documents are supplied, the project number and TAS part number should be written on each document. Any review or approval of data or documentation submitted by Seller to Buyer shall not relieve Seller of the responsibility for the accuracy of documentation or data, or with compliance with all requirements of the Contract.
28. HEALTH AND SAFETY:
If Seller or any of its vendors visit the Buyer’s facility or jobsite(s), all such personnel shall comply with Buyer’s Safety Requirements and Drug and Alcohol Program Requirements, which will be made available to Seller upon request.