T&C v1 (3/2024)
FOR THE PORTION OF THIS PURCHASE ORDER THAT PERTAINS TO CONTRACT SERVICE WORK PERFORMED BY SELLER ON BUYER’S PROPERTY AND WHERE A MASTER SERVICE AGREEMENT BETWEEN SELLER AND BUYER EXISTS, THE PARTIES ACKNOWLEDGE AND AGREE THAT SUCH MASTER SERVICE AGREEMENT AND THE TERMS AND CONDITIONS THEREOF GOVERN THAT WORK AND THE PROVISIONS OF THE FOLLOWING PURCHASE ORDER TERMS AND CONDITIONS DO NOT APPLY. 1. OFFER This Purchase Order and its attachments, if any, constitute Goodnight Midstream, LLC’s (Goodnight Midstream, LLC, or its purchasing affiliate identified on the face of the Purchase Order being referred to herein as “Buyer”) offer to purchase from Seller the goods and services described herein. Buyer’s offer is conditioned upon Seller’s acceptance of each of the terms and conditions of this Purchase Order. Any modification of any term and condition by Seller or any additional or different term and condition proposed by Seller shall constitute a counter offer and shall not be binding on Buyer until specifically accepted by an authorized purchasing representative of Buyer in writing. 2. ACCEPTANCE Acceptance by Seller of this offer to purchase as written shall occur at the time (a) Buyer receives a written acknowledgment of Seller’s acceptance, which may include issuance of an invoice in accordance with Section 13, (b) Buyer is deemed to have accepted this offer as set forth below, or (c) when Seller ships the first lot of the goods or commences performance of the services ordered hereunder, whichever occurs first. In the event Seller fails to provide Buyer with a written acknowledgment of acceptance (including issuance of an invoice in accordance with Section 13) or notice of rejection within fifteen (15) days from receipt of Buyer’s offer, and unless Seller requests modification of or additional or different terms or conditions than those expressed herein within that same fifteen (15) day period, Buyer and Seller hereby agree that Seller shall be deemed to accept this offer, and the terms and conditions of this Purchase Order shall apply in their entirety as written. 3. MODIFICATIONS Modifications to this Purchase Order shall become part of the Purchase Order when confirmed in writing by an authorized purchasing representative of Buyer and accepted by Seller. 4. PRICE The prices included on the face of this Purchase Order are firm and fixed unless otherwise agreed in writing by Buyer. Buyer shall receive the benefit of any general reductions in Seller’s prices prior to delivery. 5. EXPEDITING AND INSPECTION Seller shall provide Buyer and its agents and representatives with any information pertinent to this Purchase Order and shall allow Buyer and its agents and representatives to have access to any production facility in order to witness the progress of the work and inspect the materials being used. Buyer and its agents and representatives shall have the right to inspect each item when completed whether paid for or not by Buyer. Such inspections shall be at Buyer’s cost and shall not unduly interfere with the normal operations of Seller. Neither Buyer’s inspection nor failure to inspect shall relieve Seller of its obligations hereunder. Goods and services may be rejected by Buyer if they fail to meet the terms of this Purchase Order, and any such goods shall be returned to Seller at Seller’s cost. 6. GENERAL WARRANTY In addition to the implied warranties under the Uniform Commercial Code, Seller expressly represents and warrants to Buyer that all goods and services furnished under this Purchase Order shall (a) conform to the specifications and other requirements furnished by Buyer, (b) be new and of merchantable quality, (c) be fit for the purpose intended, (d) be of good material and workmanship, (e) be and will be conveyed free from any defects in materials, workmanship and design, (f) meet standard industry practices and procedures, (g) are manufactured, produced and/or performed in compliance with all Applicable Law, and (h) be free and clear of any security interests, liens or other encumbrances, and Seller has merchantable title thereto. The representations and warranties in this Section 6 and in Section 7 shall survive the termination or expiration of this Purchase Order for whatever reason. 7. DEFECTS If any goods or services furnished hereunder do not conform to the warranties set forth in Section 6, Seller shall promptly repair or replace all such goods and services upon notification by Buyer within the later of eighteen (18) months from the date of shipment or twelve (12) months from the date of jobsite start-up, free of cost to Buyer. At Buyer’s option, defective goods may be repaired or replaced by Seller at Buyer’s facility or wherever the goods are located, or may be returned to Seller’s facility or to an authorized repair center, all at Seller’s expense. In the event of Seller’s failure to correct or replace goods and services or diligently initiate the correction and replacement thereof within five (5) business days of Buyer’s notice to Seller, Buyer may correct or replace such goods and services and charge Seller all costs thereof. Notwithstanding the foregoing, if any non-conformity with a warranty materially affects the operation or use of any of the goods or the project or presents an imminent threat to the safety or health of any person or entity and Buyer knows of such nonconformity, Buyer may, at its option, correct or replace such goods or services without giving Seller notice of such nonconformity, and Seller shall be responsible and liable to Buyer for all costs incurred by Buyer. Such correction of work obligation, together with all other service warranties of Seller, shall extend to Buyer, its successors and assigns. 8. INDEMNITY SELLER SHALL ASSUME THE RISK OF AND RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER, ITS AFFILIATES, AND THEIR DIRECTORS, REPRESENTATIVES, OFFICERS, AGENTS, EMPLOYEES, ASSIGNS, AND SHAREHOLDERS (“BUYER INDEMNITEES”) FROM AND AGAINST ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, CAUSES OF ACTION, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF OR RELATING TO ANY INJURY (INCLUDING DEATH) TO ANY PERSON OR DAMAGE TO ANY PROPERTY RESULTING FROM OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR NON PERFORMANCE OF THIS PURCHASE ORDER OR THE GOODS OR SERVICES FURNISHED HEREUNDER REGARDLESS OF WHETHER THE SAME MAY HAVE BEEN CAUSED IN WHOLE OR IN PART BY THE SOLE, CONCURRENT, ACTIVE OR PASSIVE NEGLIGENCE OF BUYER INDEMNITEES OR A THIRD PARTY. Seller agrees, upon receipt of notification from Buyer, to promptly assume full responsibility for the defense of any such suit or proceeding; provided, however, that Buyer may be represented by and actively participate through its own counsel in any such suit or proceeding. This indemnification shall survive the termination or expiration of this Purchase Order for whatever reason. 9. DELIVERY Seller shall prepare the goods sold hereunder for delivery to the destination specified and will cause delivery within the time period specified on the face of the Purchase Order. If Seller does not prepare the goods within the applicable time period, Buyer may require Seller to deliver the goods by the most expeditious means available and Seller shall pay for that portion of the transportation charge which exceeds the cost of the method which would have otherwise been used. 10. PACKING Seller shall properly package the goods in order to insure adequate protection against damage during shipment. Partial shipments are permitted as set forth herein. Such partial shipments shall be accompanied by identifying documents but shall not be interpreted to make the obligations of Seller severable. Itemized packing lists must accompany each shipment. Buyer’s count shall be accepted as final and conclusive on shipments not accompanied by Seller’s itemized packing list. Each shipment shall be properly labeled as indicated in the Purchase Order. No fees for packaging, packing, crating, freight or other costs will be paid by Buyer unless expressly stated in this Purchase Order. Seller shall be solely liable for damaged goods resulting from improper packing or marking. 11. HAZARDOUS MATERIAL Any materials identified as hazardous to employees during use or application must be accompanied by a suitable Material Safety Data Sheet (MSDS) notice. Seller shall furnish, without limitation, all appropriate and required shipping, handling and use certifications, instructions, labeling, lists and representations for shipping, safety, handling, exposure and disposal. 12.MATERIAL TEST REPORTS All goods shall be accompanied by any applicable manufacturers material test reports when received at the delivery location specified on the face of the Purchase Order. Seller shall include copies of manufacturers material test reports with each related invoice and will provide electronic copies if requested by Buyer. 13.INVOICE AND PAYMENT Seller shall invoice Buyer for all goods and services sold hereunder. Each invoice shall specify Buyer’s Purchase Order number, date, authorization for expenditure (AFE) number and Project Name, and the specific goods and services being invoiced. Invoices shall be delivered to Buyer, along with supporting documentation required by this Purchase Order, including, without limitation, a signed receipt of bill of lading or bill of materials and any applicable manufacturers material test reports. If payment is to be made following delivery of goods, then all invoices must be mailed within thirty (30) days after the relevant goods are shipped. The date invoices subject to cash discount are received by Buyer will be the date the discount period will begin. Any legal action regarding payment of an invoice must be commenced by Seller within one hundred twenty (120) days after the date the invoice was mailed or Seller’s right to payment shall be deemed conclusively waived. Payment due date shall be computed from the date of the later of the actual delivery date or the date of receipt of a correct invoice. Payment shall be deemed to have been made on the date the Buyer’s check is mailed or payment is otherwise tendered. 14.TAXES Seller shall pay, and the Total Purchase Order Amount includes, all customs and import duties or charges arising from or related to the performance of this Purchase Order except for any increase in importation duties or charges following the date of this Purchase Order which are a necessary consequence of import and are incurred as a result of import regulations imposed by Applicable Law. In addition, Seller shall obtain and pay, and the Total Purchase Order Amount includes, the cost of all permits, licenses, fees and certificates of inspection necessary for the prosecution and completion of this Purchase Order. All federal, state and local sales and use taxes shall be the responsibility of Buyer. The sales and use tax information included on the face of the Purchase Order has been estimated by Buyer for Buyer’s internal use only and does not necessarily represent the actual tax obligations for goods delivered pursuant to the Purchase Order. Seller shall be responsible for calculating actual sales and use tax obligations and including such amounts with each of Seller’s invoices delivered in accordance with Section 13. 15.TERMINATION FOR CONVENIENCE At any time, Buyer may terminate for its convenience all or any separable part of this Purchase Order by giving written notice to Seller. On the date that notice of such termination is received by Seller, Seller shall: (a) discontinue all work relating to the goods so terminated except for work specifically required by complying with the instructions in the cancellation notice, (b) place no additional orders, (c) preserve and protect materials on hand purchased for or committed to this Purchase Order, work for goods and services in progress, and completed goods and services both in Seller’s and in its subcontractors plants pending Buyer’s written instructions, and (d) dispose of same in accordance with Buyer’s written instructions. Buyer’s sole and exclusive liability to Seller upon termination under this Section 15 shall be payment of a cancellation fee equal to five percent (5%) of the total Purchase Order Price (excluding estimated sales and use taxes included in the Total Purchase Order Amount). Seller shall not be entitled to any prospective profits nor damages because of the cancellation. 16.TERMINATION FOR DEFAULT Each of the following events shall constitute a material default by Seller for purpose of this Purchase Order (each of which shall entitle Buyer to terminate for default in accordance with this Section): (a) any bankruptcy proceeding by or against Seller or the appointment of a trustee for the benefit of creditors; (b) a refusal or failure of Seller to deliver the goods, or to perform the services, in accordance with any of the agreed scheduled delivery date(s), provided that Buyer has notified Seller of its failure to pay and Seller has not cured such failure within ten (10) days of such notice, or (ii) if, based upon the current progress of the goods and services and information provided by Seller, Seller is projected to deliver any portion of the goods or perform any portion of the services thirty (30) days or more beyond the applicable scheduled delivery date(s) for such goods or services; (c) assignment of all or any part of this Purchase Order without Buyer’s consent; or (d) failure to perform any other material provision of this Purchase Order. In the event Seller does not cure any such default within a period of seven (7) days after notice thereof, or such longer period as Buyer may authorize in writing, then Buyer may give written notice to Seller to terminate this Purchase Order or any part thereof. In the event of termination for default, Buyer shall not be liable to Seller for payment of any amount beyond the value of any goods and services shipped or received and accepted by Buyer, less damages suffered by Buyer. In such case, Seller shall be liable to Buyer for any and all damages incurred by Buyer arising out of or resulting from such default, including any and all liquidated damages which shall be based on the date(s) that a reasonable substitute supplier, exercising proper due diligence, achieved such respective scheduled deliveries. Buyer agrees to act reasonably to mitigate any costs it might incur in connection with any termination by Buyer under this Section. Upon request by Buyer, Seller will deliver or assign to Buyer any goods and services in progress at the time of termination. 17.CONFIDENTIALITY All information furnished by Buyer hereunder, and any information furnished by Seller in connection with goods specifically designed or manufactured for Buyer, shall be the proprietary information of Buyer. Seller shall disclose Buyer’s proprietary information to a third party only with the prior written consent of Buyer or if required to do so under a valid court order. Upon request, and in any event upon the completion, termination or cancellation of this Purchase Order, Seller shall return all such information to Buyer. 18.RESERVATION OF RIGHTS Any action by Buyer with respect to inspection of or payment for the goods and/or related services covered by this Purchase Order shall not prejudice Buyer’s right to reject nonconforming or defective goods or services, nor be deemed to constitute acceptance by Buyer of the goods or services, or affect in any way Seller’s obligations under this Purchase Order notwithstanding Buyer’s opportunity to inspect the goods and/or related services, Buyer’s knowledge of the nonconformity or defect, the importance or critical nature of, or the ease of discovery of the nonconformity or defect, nor Buyer’s earlier failure to reject the goods or services. 19.INSTALLATION Buyer shall be responsible for installation of the goods purchased hereunder at its own expense unless otherwise specified herein. If requested by Buyer, Seller shall make available to Buyer without charge (or at such rate otherwise mutually agreed upon), one or more persons as reasonably required to assist in the installation. Such person(s) shall not be deemed an agent or employee of Buyer, and Seller shall be solely responsible for their acts or omissions. 20. FORCE MAJEURE Time is of the utmost importance in the performance of this Purchase Order. Neither Buyer nor Seller shall be liable to the other for failure to perform in accordance with the provisions of this Purchase Order, other than to make payments due hereunder, if such failure is due to catastrophic acts of God (such as earthquake or tornado); war; riot; civil commotion; strike by labor other from that employed by Buyer or Seller; insurrection; government orders, rules, regulations, suspensions or requisitions of any kind; or fire; provided that such act or event (a) renders impossible the affected party’s performance of its obligations under this Purchase Order, (b) is beyond the control of the affected party and not due to its fault or negligence, and (c) could not have been prevented or avoided by the affected party through the exercise of due diligence, including the expenditure of any reasonable sum taking into account the Total Purchase Order Amount. An event satisfying all of the requirements of this Section 20 shall be referred to as a “Force Majeure Event.” If either party is entitled to relief under this Section 20 for a Force Majeure Event, the affected party must notify the other party in writing within five (5) days of the occurrence of the Force Majeure Event or forfeit its exclusion from liability under this Section. The notice must contain reasons for the delay and, if provided by Seller, an estimate of the delay in shipment of the goods or performance of the services. 21. GOVERNING LAW; JURISDICTION AND VENUE This Purchase Order shall be governed by, and construed in accordance with, the laws of the State of Texas (without giving effect to the principles thereof relating to conflicts of law). Each Party hereby irrevocably: (i) submits to the exclusive jurisdiction of the state and federal courts in Dallas, Texas, in respect of any actions or proceedings relating in any way to this Purchase Order, and agrees not to commence any proceeding relating thereto except in such courts; and (ii) waives any objection to the venue of any proceeding relating to this Purchase Order in the state and federal courts in Dallas, Texas, including the objection that any such proceeding has been brought in an inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Purchase Order. 22. COMPLIANCE WITH LAWS Seller agrees that all goods and services furnished under this Purchase Order will comply with all applicable laws, orders, codes and regulations, including those governing labor, wages, and improper or illegal payments, gifts or gratuities, those promulgated by any federal, state and local authorities, and those codes and regulations set forth in this Purchase Order (“Applicable Law”). Seller is exclusively liable for the payment of any state, municipal or federal payroll taxes, and for workmen’s compensation, employer’s liability and general public liability and property damage insurances. To the extent applicable to this Purchase Order, Seller agrees to comply with all provisions of the Federal Equal Employment Opportunity Regulations, the Federal Acquisition Regulations, and the orders, regulations and laws relating thereto, and such are incorporated herein by reference with the same force and effect as if set forth herein in full, including without limitation, the provisions of (i) Section 202 of Executive Order 11246 of September 24, 1965 at C.F.R.§§ 60-1.4 (1993), (ii) 29 U.S.C. §§701 (1993) and 41 C.F.R.§§ 60-741.4 (1993), (iii) C.F.R.§§ 60-250.4 (1993), (iv) requirements for filing of EEO-1 forms and preparation of Affirmative Action Plans, (v) Affirmative Action Plans for Equal Employment Opportunity and Minority and Female Owned Business, (vi) the Occupational Safety and Health Act of 1970 and (vii) Americans with Disabilities Act of 1990, 42 U.S.C. 6 §§ 12101-12117 (1993). SELLER SHALL INDEMNIFY, DEFEND, RELEASE AND HOLD HARMLESS BUYER INDEMNITEES AGAINST ALL LOSS, PENALTIES OR DAMAGES ARISING OUT OF OR RESULTING FROM SELLER’S OR ITS SUBCONTRACTORS’ FAILURE TO COMPLY WITH THIS SECTION 22 AND SECTION 34. 23.INSURANCE If Seller or any subcontractor thereof will be performing work on Buyer’s premises, Seller shall carry and maintain, and ensure that all subcontractors thereof carry and maintain, throughout the life of the Purchase Order including the warranty and guarantee period: (i) Workers’ Compensation consistent with the statutory requirements of the state where the work is to be performed, (ii) Employers’ Liability with limits of: $1,000,000 each employee for bodily injury by accident, or by disease, $2,000,000 per occurrence, (iii) Commercial General Liability Insurance with bodily injury liability limits of at least $5,000,000 for each person and $5,000,000 aggregate, (iv) Commercial General Liability Insurance with property damage liability limits of at least $5,000,000 for each accident and $5,000,000 aggregate, (v) Business Automobile Liability Insurance covering owned, non-owned or hired, with bodily injury limits of at least $1,000,000 for each person and $5,000,000 for each accident and property damage liability limits of at least $5,000,000 for each accident, and (vi) such additional insurance as may be required by the Purchase Order documents; e.g., ocean cargo marine, all risk builder’s risk, contractor’s equipment, U.S. Longshoreman’s and Harbor Workers’ Compensation Act, the Jones Act. Before performing such work, Seller shall deliver to Buyer an original certificate of insurance indicating that the insurance set forth hereinabove is in effect, which provides for no less than thirty (30) days prior written notice to Buyer from the insurer of material changes, cancellation or non-renewal. The polices of insurance shall contain a provision naming Buyer, its parent, subsidiaries, divisions, and affiliated companies and its and their officers, directors, employees, agents, heirs, assigns, successors in interest, and representatives as additional insured. 24.PATENTS Seller warrants that Buyer’s use, possession, purchase or sale of all goods and services furnished under this Purchase Order will not infringe on any United States or foreign patents, copyrights, trademarks or other intellectual property rights. SELLER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE BUYER INDEMNITEES FROM ALL LOSS, PENALTIES OR DAMAGES ARISING OUT OF OR RESULTING FROM ANY CLAIMS OR SUITS FOR INFRINGEMENT OF UNITED STATES OR FOREIGN PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CLAIMS OF UNFAIR COMPETITION ARISING OUT OF OR RESULTING FROM BUYER’S USE, POSSESSION, PURCHASE OR SALE OF ALL GOODS AND SERVICES FURNISHED UNDER THIS PURCHASE ORDER. Seller shall defend all such suits and shall pay all related costs. In addition, if the use of any portion of such goods or services are enjoined, Seller shall, at its sole expense, and subject to Buyer’s sole discretion, procure the right to continue use of such goods or services, modify such goods or services to render them noninfringing, replace such goods or services with noninfringing goods or services, or remove that portion of the goods or services completely and refund the purchase price for such goods or services plus all related transportation, installation and dismantling costs related to such goods or services. 25.TITLE Title to the goods and related services, or any part thereof, shall pass to Buyer upon the earlier of: (i) issuance of a bill of lading for such goods at the specified delivery location or (ii) Buyer’s payment for such goods and services to the extent of the payment so made. Seller shall clearly identify the goods (including raw materials and components) as property of Buyer by visible marking or tagging, and Buyer shall have the right, at Buyer’s option, to inspect and verify that said goods have been identified as Buyer’s property. Care, custody, and control of such goods and risk of loss with respect to such goods remains with Seller until received by Buyer at the specified delivery location. 26.WAIVER Any waiver by Buyer of any breach of any term or condition of this Purchase Order shall not constitute a waiver of any such subsequent breach of the same or any other term or condition hereof. The rights and remedies of Buyer set forth herein are not exclusive, but are in addition to all other rights and remedies of Buyer at law and in equity. Seller agrees that any right, or remedy of Buyer under this Purchase Order shall extend to Buyer’s parent company, as well as any affiliate, assignee, customer or client of Buyer, and any party(ies) on whose behalf this Purchase Order was issued. 27.ASSIGNMENT AND SETOFF This Purchase Order, including amounts to be paid hereunder, shall not be assigned or transferred in whole or in part by Seller without Buyer’s prior written consent and any assignment or transfer without such consent shall be void. Buyer may freely assign this Purchase Order in whole or in part to any affiliate or successor entity at any time without Seller’s consent, provided that any assignment by Buyer pursuant to this Section 27 shall not relieve Buyer of any of its obligations or liabilities under this Purchase Order. All claims for monies due, or to become due, from Buyer shall be subject to Buyer’s deduction of any amount due or to become due from Seller arising out of this or any other transaction with Seller. This Purchase Order shall be binding upon Seller and Buyer and their respective successors and permitted assigns. 28.RECORDS AND AUDIT Seller shall, and shall ensure that its subcontractors shall, for a period of three (3) years after the date of delivery of the goods or performance of the services sold hereunder, retain a true and correct set of all documents which relate to the goods and services required under this Purchase Order, and shall make those documents available to Buyer and its representatives for audit. Seller shall cooperate fully with Buyer during the audits performed hereunder, including furnishing Buyer with copies of all requested documents. 29.ENTIRE AGREEMENT This Purchase Order, including the face of this Purchase Order, Buyer’s specifications and expressly incorporated attachments, constitutes the entire agreement between Buyer and Seller regarding the subject matter of this Purchase Order, and supersedes all prior bids, awards, discussions, negotiations and agreements regarding the subject matter. Any amendment to this Purchase Order, including an oral modification supported by new consideration, must be in writing and must be signed by an authorized representative of Buyer and Seller before it shall be effective. In the event any provision, or any part or portion of any provision of this Purchase Order shall be held to be invalid, void or otherwise unenforceable, such holding shall not affect the remaining part or portions of that provision, or any other provision hereof. In the event of any ambiguities, express conflicts, or discrepancies between the face of this Purchase Order, these Terms and Conditions or Buyer’s specifications, such ambiguity, conflict or discrepancy shall be resolved in the foregoing order with the face of this Purchase Order having the highest priority. 30.SUBCONTRACTORS Seller shall be responsible for the acts or omissions of any subcontractor as fully as if they were the acts or omissions of Seller. Without relieving Seller of any of its warranty obligations under this Purchase Order, Seller shall assign in full, and without cost to Buyer, all warranties from Seller’s subcontractors, including, without limitation, any manufacturers warranties, that are applicable to the goods or services provided hereunder, and deliver such assigned warranties to Buyer prior to final payment. All subcontracts shall be subject to the provisions of this Purchase Order, and Seller shall insert into Seller’s subcontracts all provisions required by this Purchase Order or necessary to enable Seller to comply with the terms of this Purchase Order. 31.INDEPENDENT CONTRACTOR The relationship of Seller to Buyer shall be that of an independent contractor and not an agent of Buyer, and as such, Seller shall have full power of management and direction in all matters relating to the provision of the goods and the services. Neither Seller, any subcontractor of Seller nor the employees of either shall be deemed to be employees or agents of Buyer for any purpose whatsoever. 32. LIENSShould Seller or any subcontractor or any other person or entity acting through or under any of them file a lien or other encumbrance against all or any portion of the goods, services, or the project, Seller shall, at its sole cost and expense, remove and discharge, by payment, bond or otherwise, such lien or encumbrance within twenty-five (25) days of the filing of such lien or encumbrance. If Seller fails to remove and discharge any such lien or encumbrance within such twenty-five (25) day period, then Buyer may, in its sole discretion and in addition to any other rights that it has under this Purchase Order, at law or equity, remove and discharge such lien and encumbrance using whatever means that Buyer, in its sole discretion, deems appropriate. In such circumstance, Seller shall be liable to Buyer for all damages, costs, losses and expenses (including all attorneys’ fees, consultant fees and litigation expenses, and settlement payments) incurred by Buyer arising out of or relating to such removal and discharge. All such damages, costs, losses and expenses shall be paid by Seller no later than thirty (30) days after receipt of each invoice from Buyer, and, at Buyer’s option, Buyer may withhold payment for amounts otherwise due Seller. 33. WAIVER OF CONSEQUENTIAL DAMAGES NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS PURCHASE ORDER TO THE CONTRARY, NEITHER SELLER NOR BUYER SHALL BE LIABLE UNDER THIS PURCHASE ORDER OR UNDER ANY CAUSE OF ACTION RELATED TO THE SUBJECT MATTER OF THIS PURCHASE ORDER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCTS LIABILITY OR ANY OTHER CAUSE OF ACTION FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING LOSS OF PROFITS, USE, OPPORTUNITY, REVENUES, FINANCING, BONDING CAPACITY, OR BUSINESS INTERRUPTIONS. 34. CONFLICTS OF INTEREST Seller shall not, and shall ensure that each of its subcontractors and the agents and employees of each of them shall not (a) pay any commissions or fees, or grant any rebates, to any employee or officer of Buyer or its affiliates, (b) favor employees or officers of same with gifts or entertainment of a significant cost or value, or (c) enter into any business arrangements with employees or officers of same. With respect to the supply and performance of goods and services under this Purchase Order, Seller shall, and shall cause each of its subcontractors and the agents and employees of each of them to comply with (i) all applicable provisions of the Foreign Corrupt Practices Act of the United States (15 U.S.C. § 78dd-1 and 2), and (ii) the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions as implemented in the domestic law of any state to which Seller and its subcontractors and the agents and employees of each of them is subject and not to take any action that could result in Buyer or any of its affiliates becoming subject to any action, penalty or loss of benefits thereunder. 35. MISCELLANEOUS The headings contained in this Purchase Order are for convenience and reference only and in no way define, describe, extend or limit the scope of intent of this Purchase Order or the intent of any provision contained herein. This Purchase Order may be signed in any number of counterparts and each counterpart (when combined with all other counterparts) shall represent a fully executed original as if one copy had been signed by all of the parties. Facsimile signatures shall be deemed as effective as original signatures. Preparation of this Purchase Order has been a joint effort of Seller and Buyer and the resulting document shall not be construed more severely against one of the parties than against the other. References to “days” or a “day” shall mean a calendar day, unless otherwise stated. All notices, communications and submittals between the parties pursuant to this Purchase Order shall be in the English language, unless otherwise directed in writing by Buyer. Sections 6, 7, 8, 11, 14, 15, 16, 17, 18, 21, 22, 24, 26, 28, 32 and 33 shall survive termination or expiration of this Purchase Order, in addition to any other provisions which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of this Purchase Order.
FOR THE PORTION OF THIS PURCHASE ORDER THAT PERTAINS TO CONTRACT SERVICE WORK PERFORMED BY SELLER ON BUYER’S PROPERTY AND WHERE A MASTER SERVICE AGREEMENT BETWEEN SELLER AND BUYER EXISTS, THE PARTIES ACKNOWLEDGE AND AGREE THAT SUCH MASTER SERVICE AGREEMENT AND THE TERMS AND CONDITIONS THEREOF GOVERN THAT WORK AND THE PROVISIONS OF THE FOLLOWING PURCHASE ORDER TERMS AND CONDITIONS DO NOT APPLY. 1. OFFER This Purchase Order and its attachments, if any, constitute Goodnight Midstream, LLC’s (Goodnight Midstream, LLC, or its purchasing affiliate identified on the face of the Purchase Order being referred to herein as “Buyer”) offer to purchase from Seller the goods and services described herein. Buyer’s offer is conditioned upon Seller’s acceptance of each of the terms and conditions of this Purchase Order. Any modification of any term and condition by Seller or any additional or different term and condition proposed by Seller shall constitute a counter offer and shall not be binding on Buyer until specifically accepted by an authorized purchasing representative of Buyer in writing. 2. ACCEPTANCE Acceptance by Seller of this offer to purchase as written shall occur at the time (a) Buyer receives a written acknowledgment of Seller’s acceptance, which may include issuance of an invoice in accordance with Section 13, (b) Buyer is deemed to have accepted this offer as set forth below, or (c) when Seller ships the first lot of the goods or commences performance of the services ordered hereunder, whichever occurs first. In the event Seller fails to provide Buyer with a written acknowledgment of acceptance (including issuance of an invoice in accordance with Section 13) or notice of rejection within fifteen (15) days from receipt of Buyer’s offer, and unless Seller requests modification of or additional or different terms or conditions than those expressed herein within that same fifteen (15) day period, Buyer and Seller hereby agree that Seller shall be deemed to accept this offer, and the terms and conditions of this Purchase Order shall apply in their entirety as written. 3. MODIFICATIONS Modifications to this Purchase Order shall become part of the Purchase Order when confirmed in writing by an authorized purchasing representative of Buyer and accepted by Seller. 4. PRICE The prices included on the face of this Purchase Order are firm and fixed unless otherwise agreed in writing by Buyer. Buyer shall receive the benefit of any general reductions in Seller’s prices prior to delivery. 5. EXPEDITING AND INSPECTION Seller shall provide Buyer and its agents and representatives with any information pertinent to this Purchase Order and shall allow Buyer and its agents and representatives to have access to any production facility in order to witness the progress of the work and inspect the materials being used. Buyer and its agents and representatives shall have the right to inspect each item when completed whether paid for or not by Buyer. Such inspections shall be at Buyer’s cost and shall not unduly interfere with the normal operations of Seller. Neither Buyer’s inspection nor failure to inspect shall relieve Seller of its obligations hereunder. Goods and services may be rejected by Buyer if they fail to meet the terms of this Purchase Order, and any such goods shall be returned to Seller at Seller’s cost. 6. GENERAL WARRANTY In addition to the implied warranties under the Uniform Commercial Code, Seller expressly represents and warrants to Buyer that all goods and services furnished under this Purchase Order shall (a) conform to the specifications and other requirements furnished by Buyer, (b) be new and of merchantable quality, (c) be fit for the purpose intended, (d) be of good material and workmanship, (e) be and will be conveyed free from any defects in materials, workmanship and design, (f) meet standard industry practices and procedures, (g) are manufactured, produced and/or performed in compliance with all Applicable Law, and (h) be free and clear of any security interests, liens or other encumbrances, and Seller has merchantable title thereto. The representations and warranties in this Section 6 and in Section 7 shall survive the termination or expiration of this Purchase Order for whatever reason. 7. DEFECTS If any goods or services furnished hereunder do not conform to the warranties set forth in Section 6, Seller shall promptly repair or replace all such goods and services upon notification by Buyer within the later of eighteen (18) months from the date of shipment or twelve (12) months from the date of jobsite start-up, free of cost to Buyer. At Buyer’s option, defective goods may be repaired or replaced by Seller at Buyer’s facility or wherever the goods are located, or may be returned to Seller’s facility or to an authorized repair center, all at Seller’s expense. In the event of Seller’s failure to correct or replace goods and services or diligently initiate the correction and replacement thereof within five (5) business days of Buyer’s notice to Seller, Buyer may correct or replace such goods and services and charge Seller all costs thereof. Notwithstanding the foregoing, if any non-conformity with a warranty materially affects the operation or use of any of the goods or the project or presents an imminent threat to the safety or health of any person or entity and Buyer knows of such nonconformity, Buyer may, at its option, correct or replace such goods or services without giving Seller notice of such nonconformity, and Seller shall be responsible and liable to Buyer for all costs incurred by Buyer. Such correction of work obligation, together with all other service warranties of Seller, shall extend to Buyer, its successors and assigns. 8. INDEMNITY SELLER SHALL ASSUME THE RISK OF AND RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER, ITS AFFILIATES, AND THEIR DIRECTORS, REPRESENTATIVES, OFFICERS, AGENTS, EMPLOYEES, ASSIGNS, AND SHAREHOLDERS (“BUYER INDEMNITEES”) FROM AND AGAINST ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, CAUSES OF ACTION, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF OR RELATING TO ANY INJURY (INCLUDING DEATH) TO ANY PERSON OR DAMAGE TO ANY PROPERTY RESULTING FROM OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR NON PERFORMANCE OF THIS PURCHASE ORDER OR THE GOODS OR SERVICES FURNISHED HEREUNDER REGARDLESS OF WHETHER THE SAME MAY HAVE BEEN CAUSED IN WHOLE OR IN PART BY THE SOLE, CONCURRENT, ACTIVE OR PASSIVE NEGLIGENCE OF BUYER INDEMNITEES OR A THIRD PARTY. Seller agrees, upon receipt of notification from Buyer, to promptly assume full responsibility for the defense of any such suit or proceeding; provided, however, that Buyer may be represented by and actively participate through its own counsel in any such suit or proceeding. This indemnification shall survive the termination or expiration of this Purchase Order for whatever reason. 9. DELIVERY Seller shall prepare the goods sold hereunder for delivery to the destination specified and will cause delivery within the time period specified on the face of the Purchase Order. If Seller does not prepare the goods within the applicable time period, Buyer may require Seller to deliver the goods by the most expeditious means available and Seller shall pay for that portion of the transportation charge which exceeds the cost of the method which would have otherwise been used. 10. PACKING Seller shall properly package the goods in order to insure adequate protection against damage during shipment. Partial shipments are permitted as set forth herein. Such partial shipments shall be accompanied by identifying documents but shall not be interpreted to make the obligations of Seller severable. Itemized packing lists must accompany each shipment. Buyer’s count shall be accepted as final and conclusive on shipments not accompanied by Seller’s itemized packing list. Each shipment shall be properly labeled as indicated in the Purchase Order. No fees for packaging, packing, crating, freight or other costs will be paid by Buyer unless expressly stated in this Purchase Order. Seller shall be solely liable for damaged goods resulting from improper packing or marking. 11. HAZARDOUS MATERIAL Any materials identified as hazardous to employees during use or application must be accompanied by a suitable Material Safety Data Sheet (MSDS) notice. Seller shall furnish, without limitation, all appropriate and required shipping, handling and use certifications, instructions, labeling, lists and representations for shipping, safety, handling, exposure and disposal. 12.MATERIAL TEST REPORTS All goods shall be accompanied by any applicable manufacturers material test reports when received at the delivery location specified on the face of the Purchase Order. Seller shall include copies of manufacturers material test reports with each related invoice and will provide electronic copies if requested by Buyer. 13.INVOICE AND PAYMENT Seller shall invoice Buyer for all goods and services sold hereunder. Each invoice shall specify Buyer’s Purchase Order number, date, authorization for expenditure (AFE) number and Project Name, and the specific goods and services being invoiced. Invoices shall be delivered to Buyer, along with supporting documentation required by this Purchase Order, including, without limitation, a signed receipt of bill of lading or bill of materials and any applicable manufacturers material test reports. If payment is to be made following delivery of goods, then all invoices must be mailed within thirty (30) days after the relevant goods are shipped. The date invoices subject to cash discount are received by Buyer will be the date the discount period will begin. Any legal action regarding payment of an invoice must be commenced by Seller within one hundred twenty (120) days after the date the invoice was mailed or Seller’s right to payment shall be deemed conclusively waived. Payment due date shall be computed from the date of the later of the actual delivery date or the date of receipt of a correct invoice. Payment shall be deemed to have been made on the date the Buyer’s check is mailed or payment is otherwise tendered. 14.TAXES Seller shall pay, and the Total Purchase Order Amount includes, all customs and import duties or charges arising from or related to the performance of this Purchase Order except for any increase in importation duties or charges following the date of this Purchase Order which are a necessary consequence of import and are incurred as a result of import regulations imposed by Applicable Law. In addition, Seller shall obtain and pay, and the Total Purchase Order Amount includes, the cost of all permits, licenses, fees and certificates of inspection necessary for the prosecution and completion of this Purchase Order. All federal, state and local sales and use taxes shall be the responsibility of Buyer. The sales and use tax information included on the face of the Purchase Order has been estimated by Buyer for Buyer’s internal use only and does not necessarily represent the actual tax obligations for goods delivered pursuant to the Purchase Order. Seller shall be responsible for calculating actual sales and use tax obligations and including such amounts with each of Seller’s invoices delivered in accordance with Section 13. 15.TERMINATION FOR CONVENIENCE At any time, Buyer may terminate for its convenience all or any separable part of this Purchase Order by giving written notice to Seller. On the date that notice of such termination is received by Seller, Seller shall: (a) discontinue all work relating to the goods so terminated except for work specifically required by complying with the instructions in the cancellation notice, (b) place no additional orders, (c) preserve and protect materials on hand purchased for or committed to this Purchase Order, work for goods and services in progress, and completed goods and services both in Seller’s and in its subcontractors plants pending Buyer’s written instructions, and (d) dispose of same in accordance with Buyer’s written instructions. Buyer’s sole and exclusive liability to Seller upon termination under this Section 15 shall be payment of a cancellation fee equal to five percent (5%) of the total Purchase Order Price (excluding estimated sales and use taxes included in the Total Purchase Order Amount). Seller shall not be entitled to any prospective profits nor damages because of the cancellation. 16.TERMINATION FOR DEFAULT Each of the following events shall constitute a material default by Seller for purpose of this Purchase Order (each of which shall entitle Buyer to terminate for default in accordance with this Section): (a) any bankruptcy proceeding by or against Seller or the appointment of a trustee for the benefit of creditors; (b) a refusal or failure of Seller to deliver the goods, or to perform the services, in accordance with any of the agreed scheduled delivery date(s), provided that Buyer has notified Seller of its failure to pay and Seller has not cured such failure within ten (10) days of such notice, or (ii) if, based upon the current progress of the goods and services and information provided by Seller, Seller is projected to deliver any portion of the goods or perform any portion of the services thirty (30) days or more beyond the applicable scheduled delivery date(s) for such goods or services; (c) assignment of all or any part of this Purchase Order without Buyer’s consent; or (d) failure to perform any other material provision of this Purchase Order. In the event Seller does not cure any such default within a period of seven (7) days after notice thereof, or such longer period as Buyer may authorize in writing, then Buyer may give written notice to Seller to terminate this Purchase Order or any part thereof. In the event of termination for default, Buyer shall not be liable to Seller for payment of any amount beyond the value of any goods and services shipped or received and accepted by Buyer, less damages suffered by Buyer. In such case, Seller shall be liable to Buyer for any and all damages incurred by Buyer arising out of or resulting from such default, including any and all liquidated damages which shall be based on the date(s) that a reasonable substitute supplier, exercising proper due diligence, achieved such respective scheduled deliveries. Buyer agrees to act reasonably to mitigate any costs it might incur in connection with any termination by Buyer under this Section. Upon request by Buyer, Seller will deliver or assign to Buyer any goods and services in progress at the time of termination. 17.CONFIDENTIALITY All information furnished by Buyer hereunder, and any information furnished by Seller in connection with goods specifically designed or manufactured for Buyer, shall be the proprietary information of Buyer. Seller shall disclose Buyer’s proprietary information to a third party only with the prior written consent of Buyer or if required to do so under a valid court order. Upon request, and in any event upon the completion, termination or cancellation of this Purchase Order, Seller shall return all such information to Buyer. 18.RESERVATION OF RIGHTS Any action by Buyer with respect to inspection of or payment for the goods and/or related services covered by this Purchase Order shall not prejudice Buyer’s right to reject nonconforming or defective goods or services, nor be deemed to constitute acceptance by Buyer of the goods or services, or affect in any way Seller’s obligations under this Purchase Order notwithstanding Buyer’s opportunity to inspect the goods and/or related services, Buyer’s knowledge of the nonconformity or defect, the importance or critical nature of, or the ease of discovery of the nonconformity or defect, nor Buyer’s earlier failure to reject the goods or services. 19.INSTALLATION Buyer shall be responsible for installation of the goods purchased hereunder at its own expense unless otherwise specified herein. If requested by Buyer, Seller shall make available to Buyer without charge (or at such rate otherwise mutually agreed upon), one or more persons as reasonably required to assist in the installation. Such person(s) shall not be deemed an agent or employee of Buyer, and Seller shall be solely responsible for their acts or omissions. 20. FORCE MAJEURE Time is of the utmost importance in the performance of this Purchase Order. Neither Buyer nor Seller shall be liable to the other for failure to perform in accordance with the provisions of this Purchase Order, other than to make payments due hereunder, if such failure is due to catastrophic acts of God (such as earthquake or tornado); war; riot; civil commotion; strike by labor other from that employed by Buyer or Seller; insurrection; government orders, rules, regulations, suspensions or requisitions of any kind; or fire; provided that such act or event (a) renders impossible the affected party’s performance of its obligations under this Purchase Order, (b) is beyond the control of the affected party and not due to its fault or negligence, and (c) could not have been prevented or avoided by the affected party through the exercise of due diligence, including the expenditure of any reasonable sum taking into account the Total Purchase Order Amount. An event satisfying all of the requirements of this Section 20 shall be referred to as a “Force Majeure Event.” If either party is entitled to relief under this Section 20 for a Force Majeure Event, the affected party must notify the other party in writing within five (5) days of the occurrence of the Force Majeure Event or forfeit its exclusion from liability under this Section. The notice must contain reasons for the delay and, if provided by Seller, an estimate of the delay in shipment of the goods or performance of the services. 21. GOVERNING LAW; JURISDICTION AND VENUE This Purchase Order shall be governed by, and construed in accordance with, the laws of the State of Texas (without giving effect to the principles thereof relating to conflicts of law). Each Party hereby irrevocably: (i) submits to the exclusive jurisdiction of the state and federal courts in Dallas, Texas, in respect of any actions or proceedings relating in any way to this Purchase Order, and agrees not to commence any proceeding relating thereto except in such courts; and (ii) waives any objection to the venue of any proceeding relating to this Purchase Order in the state and federal courts in Dallas, Texas, including the objection that any such proceeding has been brought in an inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Purchase Order. 22. COMPLIANCE WITH LAWS Seller agrees that all goods and services furnished under this Purchase Order will comply with all applicable laws, orders, codes and regulations, including those governing labor, wages, and improper or illegal payments, gifts or gratuities, those promulgated by any federal, state and local authorities, and those codes and regulations set forth in this Purchase Order (“Applicable Law”). Seller is exclusively liable for the payment of any state, municipal or federal payroll taxes, and for workmen’s compensation, employer’s liability and general public liability and property damage insurances. To the extent applicable to this Purchase Order, Seller agrees to comply with all provisions of the Federal Equal Employment Opportunity Regulations, the Federal Acquisition Regulations, and the orders, regulations and laws relating thereto, and such are incorporated herein by reference with the same force and effect as if set forth herein in full, including without limitation, the provisions of (i) Section 202 of Executive Order 11246 of September 24, 1965 at C.F.R.§§ 60-1.4 (1993), (ii) 29 U.S.C. §§701 (1993) and 41 C.F.R.§§ 60-741.4 (1993), (iii) C.F.R.§§ 60-250.4 (1993), (iv) requirements for filing of EEO-1 forms and preparation of Affirmative Action Plans, (v) Affirmative Action Plans for Equal Employment Opportunity and Minority and Female Owned Business, (vi) the Occupational Safety and Health Act of 1970 and (vii) Americans with Disabilities Act of 1990, 42 U.S.C. 6 §§ 12101-12117 (1993). SELLER SHALL INDEMNIFY, DEFEND, RELEASE AND HOLD HARMLESS BUYER INDEMNITEES AGAINST ALL LOSS, PENALTIES OR DAMAGES ARISING OUT OF OR RESULTING FROM SELLER’S OR ITS SUBCONTRACTORS’ FAILURE TO COMPLY WITH THIS SECTION 22 AND SECTION 34. 23.INSURANCE If Seller or any subcontractor thereof will be performing work on Buyer’s premises, Seller shall carry and maintain, and ensure that all subcontractors thereof carry and maintain, throughout the life of the Purchase Order including the warranty and guarantee period: (i) Workers’ Compensation consistent with the statutory requirements of the state where the work is to be performed, (ii) Employers’ Liability with limits of: $1,000,000 each employee for bodily injury by accident, or by disease, $2,000,000 per occurrence, (iii) Commercial General Liability Insurance with bodily injury liability limits of at least $5,000,000 for each person and $5,000,000 aggregate, (iv) Commercial General Liability Insurance with property damage liability limits of at least $5,000,000 for each accident and $5,000,000 aggregate, (v) Business Automobile Liability Insurance covering owned, non-owned or hired, with bodily injury limits of at least $1,000,000 for each person and $5,000,000 for each accident and property damage liability limits of at least $5,000,000 for each accident, and (vi) such additional insurance as may be required by the Purchase Order documents; e.g., ocean cargo marine, all risk builder’s risk, contractor’s equipment, U.S. Longshoreman’s and Harbor Workers’ Compensation Act, the Jones Act. Before performing such work, Seller shall deliver to Buyer an original certificate of insurance indicating that the insurance set forth hereinabove is in effect, which provides for no less than thirty (30) days prior written notice to Buyer from the insurer of material changes, cancellation or non-renewal. The polices of insurance shall contain a provision naming Buyer, its parent, subsidiaries, divisions, and affiliated companies and its and their officers, directors, employees, agents, heirs, assigns, successors in interest, and representatives as additional insured. 24.PATENTS Seller warrants that Buyer’s use, possession, purchase or sale of all goods and services furnished under this Purchase Order will not infringe on any United States or foreign patents, copyrights, trademarks or other intellectual property rights. SELLER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE BUYER INDEMNITEES FROM ALL LOSS, PENALTIES OR DAMAGES ARISING OUT OF OR RESULTING FROM ANY CLAIMS OR SUITS FOR INFRINGEMENT OF UNITED STATES OR FOREIGN PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CLAIMS OF UNFAIR COMPETITION ARISING OUT OF OR RESULTING FROM BUYER’S USE, POSSESSION, PURCHASE OR SALE OF ALL GOODS AND SERVICES FURNISHED UNDER THIS PURCHASE ORDER. Seller shall defend all such suits and shall pay all related costs. In addition, if the use of any portion of such goods or services are enjoined, Seller shall, at its sole expense, and subject to Buyer’s sole discretion, procure the right to continue use of such goods or services, modify such goods or services to render them noninfringing, replace such goods or services with noninfringing goods or services, or remove that portion of the goods or services completely and refund the purchase price for such goods or services plus all related transportation, installation and dismantling costs related to such goods or services. 25.TITLE Title to the goods and related services, or any part thereof, shall pass to Buyer upon the earlier of: (i) issuance of a bill of lading for such goods at the specified delivery location or (ii) Buyer’s payment for such goods and services to the extent of the payment so made. Seller shall clearly identify the goods (including raw materials and components) as property of Buyer by visible marking or tagging, and Buyer shall have the right, at Buyer’s option, to inspect and verify that said goods have been identified as Buyer’s property. Care, custody, and control of such goods and risk of loss with respect to such goods remains with Seller until received by Buyer at the specified delivery location. 26.WAIVER Any waiver by Buyer of any breach of any term or condition of this Purchase Order shall not constitute a waiver of any such subsequent breach of the same or any other term or condition hereof. The rights and remedies of Buyer set forth herein are not exclusive, but are in addition to all other rights and remedies of Buyer at law and in equity. Seller agrees that any right, or remedy of Buyer under this Purchase Order shall extend to Buyer’s parent company, as well as any affiliate, assignee, customer or client of Buyer, and any party(ies) on whose behalf this Purchase Order was issued. 27.ASSIGNMENT AND SETOFF This Purchase Order, including amounts to be paid hereunder, shall not be assigned or transferred in whole or in part by Seller without Buyer’s prior written consent and any assignment or transfer without such consent shall be void. Buyer may freely assign this Purchase Order in whole or in part to any affiliate or successor entity at any time without Seller’s consent, provided that any assignment by Buyer pursuant to this Section 27 shall not relieve Buyer of any of its obligations or liabilities under this Purchase Order. All claims for monies due, or to become due, from Buyer shall be subject to Buyer’s deduction of any amount due or to become due from Seller arising out of this or any other transaction with Seller. This Purchase Order shall be binding upon Seller and Buyer and their respective successors and permitted assigns. 28.RECORDS AND AUDIT Seller shall, and shall ensure that its subcontractors shall, for a period of three (3) years after the date of delivery of the goods or performance of the services sold hereunder, retain a true and correct set of all documents which relate to the goods and services required under this Purchase Order, and shall make those documents available to Buyer and its representatives for audit. Seller shall cooperate fully with Buyer during the audits performed hereunder, including furnishing Buyer with copies of all requested documents. 29.ENTIRE AGREEMENT This Purchase Order, including the face of this Purchase Order, Buyer’s specifications and expressly incorporated attachments, constitutes the entire agreement between Buyer and Seller regarding the subject matter of this Purchase Order, and supersedes all prior bids, awards, discussions, negotiations and agreements regarding the subject matter. Any amendment to this Purchase Order, including an oral modification supported by new consideration, must be in writing and must be signed by an authorized representative of Buyer and Seller before it shall be effective. In the event any provision, or any part or portion of any provision of this Purchase Order shall be held to be invalid, void or otherwise unenforceable, such holding shall not affect the remaining part or portions of that provision, or any other provision hereof. In the event of any ambiguities, express conflicts, or discrepancies between the face of this Purchase Order, these Terms and Conditions or Buyer’s specifications, such ambiguity, conflict or discrepancy shall be resolved in the foregoing order with the face of this Purchase Order having the highest priority. 30.SUBCONTRACTORS Seller shall be responsible for the acts or omissions of any subcontractor as fully as if they were the acts or omissions of Seller. Without relieving Seller of any of its warranty obligations under this Purchase Order, Seller shall assign in full, and without cost to Buyer, all warranties from Seller’s subcontractors, including, without limitation, any manufacturers warranties, that are applicable to the goods or services provided hereunder, and deliver such assigned warranties to Buyer prior to final payment. All subcontracts shall be subject to the provisions of this Purchase Order, and Seller shall insert into Seller’s subcontracts all provisions required by this Purchase Order or necessary to enable Seller to comply with the terms of this Purchase Order. 31.INDEPENDENT CONTRACTOR The relationship of Seller to Buyer shall be that of an independent contractor and not an agent of Buyer, and as such, Seller shall have full power of management and direction in all matters relating to the provision of the goods and the services. Neither Seller, any subcontractor of Seller nor the employees of either shall be deemed to be employees or agents of Buyer for any purpose whatsoever. 32. LIENSShould Seller or any subcontractor or any other person or entity acting through or under any of them file a lien or other encumbrance against all or any portion of the goods, services, or the project, Seller shall, at its sole cost and expense, remove and discharge, by payment, bond or otherwise, such lien or encumbrance within twenty-five (25) days of the filing of such lien or encumbrance. If Seller fails to remove and discharge any such lien or encumbrance within such twenty-five (25) day period, then Buyer may, in its sole discretion and in addition to any other rights that it has under this Purchase Order, at law or equity, remove and discharge such lien and encumbrance using whatever means that Buyer, in its sole discretion, deems appropriate. In such circumstance, Seller shall be liable to Buyer for all damages, costs, losses and expenses (including all attorneys’ fees, consultant fees and litigation expenses, and settlement payments) incurred by Buyer arising out of or relating to such removal and discharge. All such damages, costs, losses and expenses shall be paid by Seller no later than thirty (30) days after receipt of each invoice from Buyer, and, at Buyer’s option, Buyer may withhold payment for amounts otherwise due Seller. 33. WAIVER OF CONSEQUENTIAL DAMAGES NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS PURCHASE ORDER TO THE CONTRARY, NEITHER SELLER NOR BUYER SHALL BE LIABLE UNDER THIS PURCHASE ORDER OR UNDER ANY CAUSE OF ACTION RELATED TO THE SUBJECT MATTER OF THIS PURCHASE ORDER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCTS LIABILITY OR ANY OTHER CAUSE OF ACTION FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING LOSS OF PROFITS, USE, OPPORTUNITY, REVENUES, FINANCING, BONDING CAPACITY, OR BUSINESS INTERRUPTIONS. 34. CONFLICTS OF INTEREST Seller shall not, and shall ensure that each of its subcontractors and the agents and employees of each of them shall not (a) pay any commissions or fees, or grant any rebates, to any employee or officer of Buyer or its affiliates, (b) favor employees or officers of same with gifts or entertainment of a significant cost or value, or (c) enter into any business arrangements with employees or officers of same. With respect to the supply and performance of goods and services under this Purchase Order, Seller shall, and shall cause each of its subcontractors and the agents and employees of each of them to comply with (i) all applicable provisions of the Foreign Corrupt Practices Act of the United States (15 U.S.C. § 78dd-1 and 2), and (ii) the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions as implemented in the domestic law of any state to which Seller and its subcontractors and the agents and employees of each of them is subject and not to take any action that could result in Buyer or any of its affiliates becoming subject to any action, penalty or loss of benefits thereunder. 35. MISCELLANEOUS The headings contained in this Purchase Order are for convenience and reference only and in no way define, describe, extend or limit the scope of intent of this Purchase Order or the intent of any provision contained herein. This Purchase Order may be signed in any number of counterparts and each counterpart (when combined with all other counterparts) shall represent a fully executed original as if one copy had been signed by all of the parties. Facsimile signatures shall be deemed as effective as original signatures. Preparation of this Purchase Order has been a joint effort of Seller and Buyer and the resulting document shall not be construed more severely against one of the parties than against the other. References to “days” or a “day” shall mean a calendar day, unless otherwise stated. All notices, communications and submittals between the parties pursuant to this Purchase Order shall be in the English language, unless otherwise directed in writing by Buyer. Sections 6, 7, 8, 11, 14, 15, 16, 17, 18, 21, 22, 24, 26, 28, 32 and 33 shall survive termination or expiration of this Purchase Order, in addition to any other provisions which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of this Purchase Order.