ShopBakerHughes.com Terms of Sale
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NOTE: THIS AGREEMENT CONTAINS PROVISIONS THAT INDEMNIFY AND/OR RELEASE THE INDEMNIFIED AND/OR RELEASED PARTY FROM THE CONSEQUENCES OF ITS OWN NEGLIGENCE AND OTHER LEGAL FAULT.
Orders for the sale of products or rental of equipment (“Products”) or for services (“Services”) to be provided by Baker Hughes, a GE Company, through its direct or indirect subsidiaries and affiliated or related companies (in each case such company is referred to herein as “SELLER”) to its customers (each a “BUYER”) are subject to acceptance by SELLER, and any orders so accepted will be governed by the terms and conditions stated herein and any additional terms proposed or agreed to in writing by an authorized representative of SELLER (these terms and conditions and any such additional terms collectively referred to herein as the “Agreement.”)
1. PAYMENT TERMS
For credit card or eCheck orders, the full purchase price for Products or Services shall be paid at the time of purchase.
If BUYER has an approved Baker Hughes line of credit, payment for an order will be made according to BUYER's negotiated payment terms.
2. CANCELLATION AND RETURNS
BUYER’s orders are a final sale. Orders are not subject to cancellation by BUYER for any reason.
3. THIRD PARTY CHARGES, TAXES
BUYER shall: be responsible for and shall pay when due and payable all existing and future taxes duties, fees and other charges of any nature (including, without limitation, ad valorem, consumption, excise, franchise, gross receipts, import, export, license, property, sales and use, stamp, storage, transfer, turnover, value-added taxes (“VAT”), or other similar taxes, and any and all items of deficiency, penalty, addition to tax, interest, or assessment related thereto), imposed or assessed by any governmental authority of any country in connection with the execution of the Agreement or provision of or payment for Products, Equipment or Services hereunder, but excluding all corporate income taxes and taxes imposed on Seller and any taxes imposed on Seller’s employees by applicable laws in connection with the execution of the Agreement or the provision of or payment for Products or Services hereunder.
The Agreement Price does not include any taxes that are the responsibility of the Buyer. Therefore, if any such taxes are applicable they will be added to the Agreement Price. For U.S. sales and use tax, and in other jurisdictions where applicable, Buyer may report and remit sales or similar taxes if directly if Buyer timely provides a direct pay exemption certificate to Seller.
If the Buyer is required to deduct or withhold any corporate income taxes from the Agreement Price, Buyer shall make all reasonable efforts to minimize any withholding tax from payments to Seller, in accordance with applicable laws and any applicable bilateral conventions against double taxation and provide to Seller, within 30 days from payment, the official receipt issues by the competent government authority to which the corporate income taxes have been paid, or an alternative document acceptable to the relevant tax authorities. If Buyer requires tax residence certificates or other documentation from Seller to apply for any exempted or reduced tax regime, Seller shall submit the appropriate certificates upon Buyer’s written request. If Buyer under applicable laws of any country other than Seller’s country of incorporation, or in which Seller has a branch, deducts or withholds corporate income taxes or if Buyer fails to comply with the requirements of this clause, Buyer shall pay additional amounts to Seller so that Seller receives the full amount of the Agreement Price, as though not such corporate income taxes had been deducted or withheld.
If BUYER obtains a refund of any tax that is the responsibility of the Buyer applicable to the transactions hereunder by a competent government or taxing authority, and SELLER subsequently receives an assessment for such tax by such taxing authority, then BUYER shall promptly reimburse SELLER the tax as well as any associated penalty, addition to tax, interest or court cost.
4. DELIVERY, TRANSFER OF TITLE AND RISK OF LOSS
A. Unless otherwise agreed between SELLER and BUYER:
(i) For Product sales with destinations within the United States of America and in accordance with Incoterms 2010: for shipments that do not involve an exit out of Seller’s country of incorporation, Seller shall deliver the products or equipment to Buyer FCA Seller’s facility, place of manufacture, or warehouse. Title and risk of loss shall pass to BUYER upon delivery
(ii) For Product sales outside the United States of America and in accordance with Incoterms 2010: for shipments that will be shipped to a delivery destination directly outside of the Seller’s country of incorporation, Seller shall deliver the products or equipment, CPT (carriage paid to a named place of destination as specified by the parties), with the following exception: TITLE AND RISK OF LOSS SHALL PASS IMMEDIATELY AFTER THE PRODUCT(S) DEPARTS FROM THE TERRITORIAL LAND, SEAS, AND/OR OVERLYING AIRSPACE OF SELLER’S COUNTRY OF INCORPORATION.
B. For Products provided on consignment, the risk of loss shall pass to BUYER as soon as the Products depart SELLER’s point of origin; however, the title shall remain with SELLER until the Product is used by BUYER.
C. If SELLER has agreed to store Products for BUYER the following shall apply:
(i) For storage within the United States of America: title and risk of loss shall transfer to BUYER once the Products are placed into storage and tagged as SELLER-owned inventory
(ii) For storage outside of the United States of America: title and risk of loss shall transfer to BUYER once the Products arrive at the original delivery point agreed to by the PARTES. BUYER shall never store Products for more than sixty (60) days.
Notwithstanding anything contained in 4(C)(i) or (ii) to the contrary, when SELLER agrees to store Products, BUYER shall pay all expenses incurred by SELLER related to storage, such as costs associated with preparation and placement into storage, handling, inspection, preservation, insurance, removal charges, interest, and any VAT or other taxes imposed directly or indirectly under applicable law. Such expenses shall be reimbursed or paid by BUYER upon submission of SELLER’s invoices. Moreover, payment for Products that would otherwise be made upon delivery at the original delivery destination shall be paid at the time Products are placed into storage.
5. LIABILITIES, RELEASES AND INDEMNIFICATION:
A. Notwithstanding anything to the contrary in this Agreement or elsewhere, but subject to Article 5(B), the parties agree that BUYER shall, to the maximum extent permitted under law, release, defend, indemnify and hold SELLER, its parent, affiliated and related companies and each of its/their respective directors, officers, employees, consultants, agents and invitees (“SELLER GROUP”), harmless from and against any and all claims, demands, causes of action, liabilities, damages, judgments, awards, losses, costs, penalties, fines and expenses (including, without limitation, reasonable attorneys’ fees and costs of litigation) of any kind or character arising after risk of loss has passed to BUYER in accordance with Article 4, asserted by or in favor of any person, party or entity (including but not limited to BUYER, SELLER or any third party) (“Claims”) including, but not limited to, those arising from or related to damage to or loss or destruction of real or personal property, personal or bodily injury to, sickness, disease or death of any person, any contamination or adverse effect on the environment, the manufacture, transportation, storage or handling of Products, and/or any indirect, incidental, special, punitive, exemplary or consequential damages or losses (which shall include any and all damages and losses for lost production, lost revenue, lost product, lost profit, lost business or business interruptions), REGARDLESS OF THE CAUSE, INCLUDING WITHOUT LIMITATION ANY FORM OF NEGLIGENCE, STRICT LIABILITY, BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF CONTRACT, OR ANY OTHER LEGAL FAULT OR RESPONSIBILITY OF SELLER, BUYER, OR ANY OTHER PERSON, PARTY OR ENTITY.
B. In the event that Article 5(A) is found to be unenforceable under law, the parties agree that SELLER’s maximum aggregate liability with respect to this Agreement and its subject matter shall be strictly limited to the lesser of: (i) the applicable order value for the Products and/or Services furnished by SELLER to BUYER, or (ii) one hundred thousand US dollars (US$100,000.00) (“Maximum Liability”) and BUYER shall release, defend, indemnify and hold SELLER GROUP harmless from and against any and all Claims in excess of the Maximum Liability, REGARDLESS OF THE CAUSE, INCLUDING WITHOUT LIMITATION ANY FORM OF NEGLIGENCE, STRICT LIABILITY, BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF CONTRACT, OR ANY OTHER LEGAL FAULT OR RESPONSIBILITY OF SELLER, BUYER, OR ANY OTHER PERSON, PARTY OR ENTITY.
C. EXCEPTING THE WARRANTY REMEDIES SET FORTH IN ARTICLE 6, REDRESS UNDER THE INDEMNITY PROVISIONS OF THIS ARTICLE 5 IS THE EXCLUSIVE REMEDY(IES) AVAILABLE TO THE PARTIES FOR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT.
A. SELLER warrants that the Products to be provided shall conform to a generally recognized range for typical physical properties established by SELLER. In the event that SELLER’s Products are defective in that they fail to comply to the foregoing standards, then at SELLER’s option and as BUYER’s sole remedy for such non-conformance, SELLER shall either: (i) repair or replace such defective Products with the type originally furnished, (ii) offer a refund, or (iii) offer a credit; provided SELLER is notified thereof in writing within thirty (30) days after delivery of the particular Products in question. For purposes of the preceding sentence, “delivery” shall occur at the location where risk of loss transferS pursuant to Article 4. SELLER’s warranty obligations shall not apply if the non-conformity was caused by: (i) failure to properly store the Products by any person, party or entity other than SELLER, (ii) unauthorized modification, alteration or repair of the Products by any person, party or entity other than SELLER, (iii) use or handling of the Products by any person, party, or entity in a manner inconsistent with SELLER’s recommendations, (iv) failure to maintain or service the Products as recommended by SELLER, (v) abnormal operating conditions, or (vi) vandalism or force majeure.
B. All non-conforming Products shall be delivered to the service facility designated by SELLER. All transportation charges and removal and reinstallation charges related to the repair or replacement of non-conforming Products shall be borne by BUYER. Any parts for which SELLER provides replacement under this warranty shall become the property of SELLER. With regard to materials or equipment furnished by third party vendors and/or sellers, SELLER’s liability therefor shall be limited to the assignment of such third party vendor’s or seller’s warranty to BUYER, to the extent such warranties are assignable. The warranty period for any repaired or replaced Products shall be only for the remainder of the original warranty period.
C. SELLER warrants that the Services to be provided shall conform to the specifications set forth by SELLER. In the event such Services are defective, in that they fail to comply with the foregoing standard, then at SELLER’s option and as BUYER’s sole remedy for such non-conformance, SELLER shall either: (i) re-perform such defective Service, (ii) offer a refund, or (iii) offer a credit; provided SELLER is notified in writing prior to completion of the Services, or, if SELLER’s deliverable is a final report or analysis, then within thirty (30) days following delivery of the final report or analysis. SELLER’s warranty obligations shall not apply if the non-conformity was caused by: (i) incorrect or incomplete specifications provided by BUYER, (ii) failure of BUYER to send samples to SELLER in accordance with SELLER’s recommendations, or (iii) vandalism or force majeure.
D. Interpretations, research, analysis, recommendations, advice or interpretational data (“Interpretations or Recommendations”) furnished by SELLER are opinions based upon inferences from measurements, empirical relationships, assumptions and industry practice, which inferences, relationships, assumptions and practices are not infallible, and with respect to which professional geologists, engineers, drilling consultants, analysts and other professionals may differ. Accordingly, SELLER does not warrant the accuracy, correctness or completeness of any such Interpretations or Recommendations or that BUYER’s reliance, or any third party’s reliance, on such Interpretations or Recommendations will accomplish any particular results. BUYER ASSUMES FULL RESPONSIBILITY FOR THE USE OF SUCH INTERPRETATIONS OR RECOMMENDATIONS AND FOR ALL DECISIONS BASED THEREON.
E. SELLER will endeavor to transmit data to BUYER as accurately and securely as practicable in accordance with current industry practice. Notwithstanding the foregoing, SELLER does not warrant the accuracy of data transmitted by electronic processes and will not be responsible to BUYER for accidental or intentional interception of such data by others.
F. SELLER does not represent or warrant that the Products are or will be compliant with the requirements of REACH (the Registration Evaluation Authorization and Restriction of Chemicals Regulation 1907/2006, as amended) and all implied warranties as to compliance with REACH (“REACH Compliance”) are hereby excluded to the fullest extent permitted by law. Without prejudice to the foregoing, SELLER shall use reasonable endeavors to obtain or maintain REACH Compliance in respect of the Products where required by law, unless it is BUYER’s responsibility to obtain or maintain REACH Compliance or any non-compliance is caused by any act or omission of BUYER. In the event SELLER receives written notice from any competent authority, or in its reasonable opinion decides, that any of the Products are not or will not become REACH Compliant, it shall inform BUYER in writing within a reasonable time and may suspend any further deliveries of the relevant Products and/or terminate the Order. BUYER shall promptly provide such information to SELLER as may be required in order to obtain and maintain REACH Compliance in respect of the Products and shall comply with its obligations under REACH.
G. THIS ARTICLE 6 SETS FORTH BUYER’S SOLE REMEDIES AND SELLER’S ONLY OBLIGATION WITH REGARD TO DEFECTIVE OR NON-CONFORMING PRODUCTS, EQUIPMENT, MATERIALS AND SERVICES. EXCEPT AS IS OTHERWISE EXPRESSLY PROVIDED PURSUANT TO THE PROVISIONS OF THIS ARTICLE 6, SELLER MAKES NO WARRANTY OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR RIG TIME INCURRED BY BUYER AS A RESULT OF DEFECTIVE OR NON-CONFORMING PRODUCTS, EQUIPMENT, MATERIALS OR SERVICES.
Upon written request, BUYER shall furnish to SELLER certificates of insurance evidencing that adequate insurance to support BUYER’S obligations hereunder has been secured. BUYER agrees that all such insurance policies shall (i) be primary to SELLER’S insurance, (ii) include SELLER, its parent, subsidiary and affiliated or related companies and its and their respective officers, directors, employees, consultants and agents as additional insured, and (iii) be endorsed to waive subrogation against the SELLER, its parent, subsidiary and affiliated or related companies and its and their respective officers, directors, employees, consultants and agents.
8. CHANGE OF DESIGN
SELLER expressly reserves the right to change or modify the design and construction of any of its Products without obligation to furnish or install such changes or modifications on Products previously or subsequently sold.
9. PATENTS; INTELLECTUAL PROPERTY RIGHTS
For purposes of this Agreement, “Intellectual Property” shall include, but not be limited to, copyrights, patents, patent applications and trade secrets of a person, party or entity. Except for SELLER’s drill bits and all other rock cutting devices which are expressly excluded from any and all Intellectual Property infringement warranty by SELLER, SELLER warrants that the acquisition of Products hereunder will not infringe valid apparatus patents of others, provided that BUYER shall promptly notify SELLER in writing upon receipt of any claim for infringement, or upon the filing of any such suit for infringement, whichever first occurs, and shall afford SELLER full opportunity, at SELLER’s option and expense, to answer such claim or threat of suit, assume the control of the defense of such suit, and settle or compromise same in any way SELLER sees fit. Regarding all Products, SELLER does not represent or warrant that the use or resale of such Products will not infringe valid patents or other Intellectual Property rights of others and as provided in Article 5 BUYER agrees to release, defend, indemnify, and hold SELLER harmless against judgment for damages for infringement of any such patent. With respect to all Products sold by SELLER, SELLER also does not warrant that such Products: (i) will not infringe any such patent when not of SELLER’s manufacture, or specially made, in whole or in part, to the BUYER’s design specifications; or (ii) if used or sold in combination with other materials or apparatus or used in the practice of processes, will not, as a result of such combination or use, infringe any such patent, and SELLER shall not be liable for damages or losses of any nature whatsoever resulting from actual or alleged patent infringement arising pursuant to (i) and (ii) above. THIS ARTICLE 9 STATES THE ENTIRE RESPONSIBILITY OF SELLER CONCERNING ANY CLAIM FOR INTELLECTUAL PROPERTY INFRINGEMENT.
As between SELLER and BUYER, all marks used on the Products as supplied by SELLER are the property of SELLER or its affiliates and licensors. All goodwill associated with those marks shall inure to the benefit of SELLER, its affiliates or licensors. Unless SELLER provides written consent, BUYER shall not make copies of any such marks or apply such marks to anything other than the Products and at all times, BUYER shall remain subject to the indemnities set forth in Article 9.
The design, construction, application and operation of SELLER’s Products and/or Services embody proprietary and confidential information. BUYER shall maintain this information in strict confidence and shall not disclose it to others, subject only to disclosure required by law or legal process.
The sale of Products by SELLER to BUYER does not convey to BUYER any Intellectual Property rights contained in or associated with the Products. The BUYER shall have no Intellectual Property rights in the Products and/or Services of SELLER and all Intellectual Property rights shall continue to be the property of SELLER. BUYER shall not resell the Products to others or reverse engineer or permit others to reverse engineer, for any purpose, including the manufacturing of similar Products. BUYER shall be required to maintain the brand contained on the Products, including leaving intact all logos and color schemes.
In the event that SELLER owns copyrights to, patents to, or has filed patent applications on, any technology related to the Products or Services furnished by SELLER hereunder, and if SELLER makes any improvements on such technology, then such improvements shall fall within the confidentiality obligations of SELLER included herein, and SELLER shall own all such improvements, including drawings, specifications, calculations and other documents.
To the extent permissible by law, BUYER shall not resell the Products (or drawings related thereto) to others or reverse engineer or permit others to reverse engineer, for the purpose of manufacturing, similar Products or parts thereof.
12. FORCE MAJEURE
If either party is unable by reason of Force Majeure to carry out any of its obligations under this Agreement, other than obligations to pay money, then on such party giving notice and particulars in writing to the other party within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended. “Force Majeure” shall include any event that is beyond the reasonable control of the party so affected including, without limitation, acts of God, laws and regulations, government action, war, civil disturbances, hijack, piracy, criminal action by a third party, threats or acts of terrorism, strikes and labor problems, delays of vendors or carriers, lightening, fire, flood, washout, storm, breakage or accident to equipment or machinery, and shortage of raw materials.
13. INDEPENDENT CONTRACTOR
It is expressly understood that SELLER is an independent contractor, and that neither SELLER nor its principals, partners, employees or subcontractors are servants, agents or employees of BUYER.
14. LAWS, RULES, REGULATIONS, AND EXPORT CONTROL
SELLER and BUYER agree to and will comply with all laws, rules, regulations and decrees of any governmental or regulatory body having jurisdiction over the Products to be provided by SELLER or the work site or that may otherwise be applicable to SELLER’s or BUYER’s performance under this Agreement. To the extent that any provision of this Agreement would cause any party to violate or be penalized under the laws of the United States, that provision shall not apply, shall not be enforceable and shall not be interpreted as part of this Agreement. BUYER acknowledges that Products and/or related technical data covered by this Agreement may be subject to U.S. and/or foreign trade controls.
BUYER shall not use, dispose of, supply, export, re-export, or transfer the goods knowing or having reason to suspect that the Products will be used, directly or indirectly, for, in, or relating to any of the following conditions, all of which are integral to sale: (i) nuclear explosive activities; (ii) safeguarded or unsafeguarded nuclear activities; (iii) the design, development, production, or use of rocket systems or unmanned air vehicles; (iv) the design, development, production, stockpiling, or use of chemical or biological weapons; (v) use in connection with a foreign maritime nuclear propulsion project; (vi) the design, development, production, stockpiling, or use of nuclear explosive devices, missiles, chemical, or biological weapons; (vii) any person designated on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Department of the Treasury, Office of Foreign Assets Control; (viii) any person on the Entity List or Denied Person List administered by the U.S. Department of Commerce, Bureau of Industry and Security; (ix) any project or person or company that is in or involves Cuba, Iran, North Korea, the Crimea region of Ukraine or Syria; or (x) any person or entity that is subject to sanctions imposed by the U.S. Government for any reason relating to U.S. export or economic sanctions. SELLER is relying on BUYER’s adherence to all of these listed conditions. BUYER agrees to comply with all SELLER requests for trade compliance information, statements, and other assurances including, without limitation, requests for End-User and Routed Transaction certifications. Any breach of this Article 14 provision shall be deemed a material breach of this Agreement and sufficient basis for SELLER to reject any or all orders or, to terminate the Agreement, and to rescind the purchase, in which event Products must be returned at BUYER’s sole expense. Further, failure to abide by any of these conditions could, in some circumstances, be a violation of U.S. law.
SELLER reserves the right to refuse to fulfill any order or otherwise perform under this Agreement if SELLER in its sole discretion determines that such action may violate any law or regulation. BUYER agrees that such refusal, cancellation, or termination of the Agreement by SELLER will not constitute a breach of SELLER’s obligations under this Agreement and BUYER hereby waives any and all claims against SELLER related to such refusal, cancellation, or termination.
15. ULTIMATE COUNTRY OF USE
BUYER shall only use the Products in the country or assigned geographic area which the Products are designated to be shipped to, or used in, as set forth in the order. Products shall not be used in Cuba, Iran, North Korea, the Crimea region of Ukraine, or Syria, nor used in any manner or in any project that would violate applicable sanctions.
16. LIENS, ATTACHMENTS AND ENCUMBERANCES.
BUYER grants to SELLER a lien upon and a security interest in: (i) any interest that BUYER now owns or hereafter acquires in the lands, leasehold interests, pipelines, pipeline right-of-ways, personal property and fixtures arising out of, pertaining to, located on, or used in connection with the development of, the mineral property on which the Products are installed (the “Mineral Property”), (ii) the oil and gas when extracted from the Mineral Property, including the proceeds thereof, (iii) the contract rights, inventory and general intangibles pertaining to the Mineral Property, and (iv) any claim against any working interest owner of the Mineral Property arising from nonpayment of joint interest billings or lease operating expenses. This lien and security interest shall be for the purpose of securing performance of BUYER’s obligations to SELLER under this Agreement. BUYER authorizes SELLER to have filed a financing statement and any other instruments SELLER determines to be necessary or appropriate to perfect the lien and security interest created hereby. Upon request, BUYER shall execute any document determined by SELLER to be necessary or appropriate to perfect this lien and security interest under all applicable laws and the real property recording statutes of the state in which the Mineral Property is located. If SELLER is unable to obtain proper execution of such documentation within a reasonable period of time after the request is made, then BUYER hereby appoints SELLER as BUYER’s true and lawful agent and attorney-in-fact, to execute all documents on its behalf, and to otherwise take such actions on its behalf, as SELLER deems necessary or appropriate, to perfect the lien and security interest created or contemplated hereby. This appointment is coupled with an interest and may not be revoked for as long as any portion of BUYER’s obligations hereunder remains outstanding. The lien and security interest created hereby are in addition to, and not in lieu of, any other liens and security interests now existing or hereafter coming into existence, and securing the performance of BUYER’s obligations hereunder, whether voluntary or involuntary, including any liens arising by statute or common law in favor of mechanics and/or materialmen.
17. TRAINING COURSES
In the event BUYER is purchasing a training course from SELLER and such course will be offered by the Baker Hughes TotalDepth Education Services group, the following shall apply: (i) no later than fifteen (15) days before commencement of class, BUYER must submit a proposed class roster, listing the names and backgrounds of all trainees, (ii) all trainees must be able to fluently read, write and speak English, (iii) BUYER will be solely responsible for obtaining an appropriate visa for each trainee (if required), so the trainee can fully participate in the course to be provided, (iv) SELLER will provide lunch and snacks when training is at SELLER’s instructional facility, but all other expenses must be paid by BUYER, including but not limited to expenses related to other meals, lodging, insurance (medical or otherwise) and/or any applicable taxes, (v) notwithstanding Article 2, should BUYER cancel a training course within twenty-one (21) days of the scheduled commencement date, CLIENT shall pay fifty percent (50%) of the retail price of the course to cover costs incurred by SELLER, (vi) while present at a facility owned or operated by SELLER, BUYER’s trainee must comply with all applicable HSE rules, directives and procedures, and (vii) BUYER and its trainee must keep all information provided by SELLER confidential, although the trainee may be allowed to keep certain course materials, as expressly noted by the instructor.
18. CHEMICAL SALES
BUYER will be solely responsible for identifying, procuring and maintaining all necessary permits, licenses, authorizations or certifications required in connection with BUYER’s application, use, transportation or any other handling of SELLER’s Products.
BUYER will review and comply with all applicable laws, regulations and HSE requirements related to the Products and their Containers (defined below). Additionally, BUYER will ensure that all people involved in using, storing, transporting or in any way handling the Product or the Containers are aware of such applicable laws, regulations and HSE requirements.
As used in this Article 18, “Containers” refer to any drum, cylinder, skid tank or other container in which Products are provided by SELLER to BUYER. BUYER shall always be responsible for proper disposal of the Containers and their contents and BUYER assumes full responsibility for any Claims (as defined in Article 5) arising from or related to improper disposal.
19. SOVEREIGN IMMUNITY
BUYER acknowledges that it is not an agency of any federal or state government, or other political subdivision thereof, entitled to sovereign immunity. Disclosures of such entitlement must be made to SELLER prior to entering into any transaction for Products or Services.
20. GOVERNING LAWS AND ARBITRATION
ANY DISPUTE, CONTROVERSY OR CLAIM (“DISPUTE”) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION CONDUCTED IN ACCORDANCE WITH THE FOLLOWING:
A. For Products provided, or to be provided, by SELLER in North or South America, arbitration shall be conducted in accordance with THE COMMERCIAL RULES OF ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION (THE “RULES”) AND SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF OKLAHOMA, EXCLUDING CONFLICTS OF LAW AND CHOICE OF LAW PRINCIPLES. The seat of arbitration shall be Houston, Texas, and the proceedings shall be conducted and concluded as soon as reasonably practicable, based upon the schedule established by the Tribunal.
B. For Products provided, or to be provided, by SELLER anywhere other than North or South America arbitration shall be conducted in accordance with THE UNCITRAL ARBITRATION RULES (THE "RULES") AND SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH ENGLISH LAW, EXCLUDING CONFLICTS OF LAW AND CHOICE OF LAW PRINCIPLES. The appointing authority under the Rules shall be the London Court of International Arbitration. The language of the arbitration shall be English. The seat of arbitration shall be London, England, and the proceedings shall be conducted and concluded as soon as reasonably practicable, based upon the schedule established by the Tribunal.
C. For any arbitration conducted hereunder, the Tribunal shall be composed of one (1) neutral arbitrator if the Dispute involves a maximum exposure of less than $1,000,000. If the parties are unable to agree on a neutral arbitrator, one will be appointed pursuant to the Rules. If the Dispute involves a maximum exposure equal to or in excess of $1,000,000, then the Tribunal shall consist of three (3) arbitrators, with each party appointing one arbitrator, and the two arbitrators so appointed appointing the third arbitrator who shall act as Chair.
D. For any arbitration conducted hereunder, judgment upon the award rendered by the Tribunal pursuant hereto may be entered in, and enforced by, any court of competent jurisdiction. All statutes of limitation that would otherwise be applicable shall apply to the arbitration proceeding. Any attorney-client privilege and other protection against disclosure of privileged or confidential information, including, without limitation, any protection afforded the work-product of any attorney, that could otherwise be claimed by any party shall be available to, and may be claimed by, any such party in any arbitration proceeding. The parties shall treat all matters relating to and included in the arbitration as confidential further including all proceedings thereof. Subject to each party’s right to cooperate fully with the United States authorities, the parties understand and agree that this confidentiality obligation extends to information concerning the fact of any request for arbitration, any ongoing arbitration, as well as all matters discussed, discovered, or divulged, (whether voluntarily or by compulsion) during the course of such arbitration proceeding.
SELLER shall have the right to assign this Agreement to any of its subsidiaries, affiliated or related companies without the consent of BUYER and shall have the right to terminate this Agreement if BUYER assigns it without SELLER’s consent.
Failure of BUYER or SELLER to enforce any of the terms and conditions of this Agreement shall not prevent a subsequent enforcement of such terms and conditions or be deemed a waiver of any subsequent breach. Should any provision of this Agreement, or a portion thereof, be unenforceable or in conflict with governing country, state, province, or local laws, then the validity of the remaining provisions, and portions thereof, shall not be affected by such unenforceability or conflict, and this Agreement shall be construed as if such provisions, or portion thereof, were not contained herein. This Agreement contains all representations of the parties and supersedes all prior oral or written agreements or representations. BUYER acknowledges that it has not relied on any representations other than those contained in this Agreement. This Agreement shall not be varied, supplemented, qualified, or interpreted by any prior course of dealing between the parties or by any usage of trade and may only be amended by an agreement executed by both parties.
23. SPECIFIC TERMS FOR SERVICES RELATED TO WELLLINK SOFTWARE:
A. Regarding any and all data provided by BUYER to SELLER, BUYER represents and warrants that it has the legal and/or contractual rights to provide such data to SUPPLIER. Buyer hereby grants SELLER and its affiliates a non-exclusive, sublicensable, worldwide, royalty-free right and license use any data provided in connection with providing the Products or performing Services under this agreement.
B. BUYER acknowledges and agrees that SELLER may maintain and/or use the data supplied by BUYER to provide, develop or improve SELLER’s own software, products or services.
C. BUYER agrees that SELLER is free to use, disclose, reproduce, license or otherwise distribute and exploit all Feedback (as defined below) as it sees fit, without obligation or restriction based on intellectual property rights, confidentiality or otherwise. BUYER will not give any Feedback that is subject to license terms or restrictions which would impede SELLER’s ability to utilize the Feedback as set forth herein. For the avoidance of doubt, this paragraph does not grant to SELLER any intellectual property rights in BUYER’s preexisting technology. As used herein, “Feedback” means suggestions, techniques, know-how, comments, feedback or other input, which may voluntarily be provided from time to time, by BUYER to SELLER with respect to SELLER’s products or services.
D. BUYER shall, at all times, comply with laws, rules and/or regulations that restrict the export of data.
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