GENERAL TERMS AND CONDITIONS FOR ALL PURCHASES

OF GOODS BY THE SAN ANTONIO REFINERY AND ITS SUBSIDIARIES

  1. AGREEMENT: These General Terms and Conditions (the “Terms and Conditions”) may or may not be attached to a written purchase order or other document.  In either event, these Terms and Conditions shall apply to every purchase of goods by The San Antonio Refinery and/or its subsidiary companies (collectively, “Buyer”), and shall become a material part of every contract involving such purchases from Seller.  “Seller” shall mean the party identified as such in Contract Document (as defined below).   Such written agreement may take the form of a “blanket” letter agreement which expressly refers to and incorporates these Terms and Conditions (a “Blanket Agreement”), a Purchase Order (defined below), or other writing.  To the extent a Purchase Order or similar document is in fact used, that document shall be deemed to incorporate automatically these Terms and Conditions, irrespective of whether such incorporation is made express in the other document.  The term “Contract Documents” as used herein shall mean (i) a Blanket Agreement, (ii) any document expressly labeled as a “Purchase Oder” on its face, and (iii) all technical specifications and drawings prepared by Buyer or Seller (“Specifications), provided that Buyer has expressly endorsed any such Specifications and further provided that any materials included within a document package containing Specifications which are not specific to that particular order (e.g. documents which Seller includes with technical specifications as a matter of its ordinary commercial practices) shall not become a part of the Contract Documents.  The Contract Documents, together with these Terms and Conditions, constitute the sole and entire agreement between the parties hereto with respect to the subject matter hereof.  Under no circumstances shall the Contract Documents include any terms and conditions proposed by Seller (“Seller Terms”), whether included on a Seller invoice or written acceptance of the Purchase Order, Specifications or otherwise, unless such Seller Terms are expressly acknowledged in a writing executed by an authorized employee of Buyer holding at least the title of “Manager” or “Vice President.”  The parties agree that the battle of the forms section of UCC §2-207 does not apply to the Contract Documents or to any invoice or acceptance form of Seller relating to the Contract Documents.  Trade custom and/or trade usage is superseded by the Contract Documents and shall not be applicable to the interpretation thereof.

  2. SPECIFICATIONS AND DRAWINGS:  In the event of a conflict between these Terms and Conditions and any Purchase Order, the Purchase Order shall control.  In the event of a conflict between the Specifications and the Purchase Order, the Specifications shall control.  Anything that may be called for in the Specifications and not shown on drawings applicable hereto, or shown on said drawings and not called for in said Specifications, shall be of like effect as if called for and shown in both.  In the case of express conflict between said drawings and said Specifications, the Specifications shall govern and control.  In the event Seller discovers any ambiguities or discrepancies in the Contract Documents, Seller shall immediately submit the matter to Buyer for its determination and shall comply with the determination of Buyer in such matter.  All Specifications, drawings, technical documents, data prepared or developed by either party in connection with the Contract Documents or the performance hereunder by Seller shall be the property of the Buyer and shall be delivered to Buyer or otherwise disposed of by the Seller as Buyer may direct.

  3. CHANGES TO QUANTITY, DESCRIPTION, PRICE AND PAYMENT:  Quantity, description, price and payment terms for all items (“Items”) or services, including, without limitation, (i) delivery by Seller to a well or lease as designated by Buyer and (ii) an act collateral to those services, including furnishing or renting equipment, incidental transportation or other goods and services furnished in connection with the services (“Services”), to be purchased by Buyer and supplied by Seller shall be as designated in in one or more other Contract Documents as designated by Buyer.  Items and Services will not be deleted from or added to the Contract Documents, except by written amendment signed by Buyer and Seller.  By written instructions issued to Seller by an authorized representative of Buyer, Buyer may from time to time make changes, issue additional instructions, require additional Items, or cancel Items ordered hereunder.  If any such change causes an increase or decrease in the cost of or the time required for the performance hereunder, an equitable adjustment shall be made in the price and/or Delivery Schedule (as hereinafter defined), as applicable, and the Primary Document shall be modified accordingly by written instrument signed by authorized representatives of Seller and Buyer.  Buyer may buy or acquire Items or Services from other sources or reduce quantities purchased or acquired from Seller irrespective of the course of dealing between the parties.  No Primary Document shall be a requirements or output contract unless designated in writing by Buyer.

  4. TERMINATION:  Buyer may at any time by written change order terminate the Contract Documents as to all or any portion of the Items then not shipped or Services not fully performed, subject to an equitable adjustment between the parties as to any Items or Services then in progress, including, without limitation reimbursing Seller for the cost of any unique raw material (not suitable for other Seller products) and work in process for Items customized for Buyer; provided that no such adjustment shall be made in favor of Seller with respect to any Items which are Seller’s standard stock.  No such termination shall relieve Buyer or Seller of any other obligations as to any Items previously delivered hereunder or Services fully performed.  Any claim for adjustment hereunder must be asserted within thirty (30) days from the date when the change or termination is ordered.

  5. PRICE:  The price specified by Seller in the Primary Document shall include all charges for packing, loading, and delivery to the location designated.  

  6. PAYMENT:  Payment shall be made on the basis and at the times set forth in the Contract Documents for Items delivered and Services performed in full conformity with the Contract Documents.  Unless otherwise specified herein, Seller must deliver the full quantity of Items, or complete to the satisfaction of Buyer the Services specified in the Contract Documents before, any payment will become due from Buyer.  Payment shall be made against such statements, invoices, and other documentation as may be requested by Buyer from time to time.  If not otherwise provided for in the Contract Documents, general payment terms (for any monthly payment, a “Regular Monthly Payment”) shall be “net 30th prox,” which shall mean on the 30th day of the month in the month following the later of (A) delivery of an invoice from Seller and (B) as applicable (i) the month of delivery, inspection and acceptance of Items by Buyer or (ii) the month of performance of Services, and acceptance by Buyer.  Buyer reserves the right to make progress payments to Seller, and to withhold retainages, on terms and conditions set forth in the applicable Contract Documents.  No payment shall be made to Seller until Buyer is in receipt of an invoice from Seller, together with such additional documentation as may be required pursuant to the terms of the Primary Document.  Buyer may require Seller to execute a lien release and certification of full payment satisfactory in form and content to Buyer as a condition to making payment to Seller. All payments due to Seller under the Contract Documents shall be paid in United States dollars or other applicable currency as determined by Buyer. 

  7. NO LIENS:  All Items shall be sold and delivered to Buyer free and clear of any and all liens, security interests and encumbrances.  Seller shall keep the Items free of all mechanic’s and materialmen’s liens, claims and encumbrances.  Seller agrees that final payment shall not become due and payable to Seller until Seller shall deliver to Buyer satisfactory releases, satisfactions or waivers of all mechanic’s and materialmen’s liens, claims and encumbrances connected with performance under the Primary Document as requested by Buyer.  Final payment to Seller shall not relieve Seller of its obligation to discharge any lien filed before or after Seller is paid for Items under the Primary Document. 

  8. DELIVERY:  Completion of Services and deliveries of Items are to be made at the time and the place specified in the Contract Documents as designated by Buyer (“Delivery Schedules”).  Except as otherwise provided in the Contract Documents, general delivery instructions shall be (i) for all Items to be delivered to or on behalf of Buyer in the United States, F.O.B. destination as specified in the Uniform Commercial Code (the “UCC”) and (ii) for all Items which are delivered to or on behalf of Buyer other than in the United States, Ex Works destination as specified in the Incoterms 2000 of the International Chamber of Commerce (as the same may be amended from time to time).  Items are to be prepared and packed according to packaging specifications provided by Buyer (if no packaging specifications are provided in the Contract Documents, then packaging shall be in a commercially reasonable manner), and deliveries shall meet all the requirements and regulations of all carriers and applicable authorities.  Title to Items and Services shall pass to Buyer immediately upon delivery to Buyer as provided in subsections (i) and (ii) above; provided, however, that the Items and Services shall remain Seller’s risk during the Inspection Period (as hereinafter defined) prior to acceptance by Buyer.

    1. RIGHT OF RETURN:  Seller agrees to accept the return (a “Return”) of any Items sold within thirty (30) days from receipt by Buyer; freight prepaid, for refund of the price upon a determination by Buyer, in the reasonable exercise of its discretion, that the Items do not meet Seller’s Warranties or otherwise are mechanically unsatisfactory or fail to meet the Specifications.

    2. CHANGES TO DELIVERY SCHEDULE: Buyer may change Delivery Schedules, or direct temporary suspension of scheduled shipments.  If Buyer cannot meet its own Delivery Schedule, Seller agrees to honor all instructions from Buyer concerning the method of shipping, routing, storage and packaging.  Seller further agrees to honor all instructions from Buyer concerning invoicing.

    3. SHIPMENTS:   A shipping notice or a packing slip describing the contents of each package or container showing weight, quantity and order number shall accompany shipment of Items. Shipment charges invoiced to Buyer or any third party shall be supported and accompanied by the original receipted bill of Seller’s or such third party’s shipper.  Unless otherwise agreed to, all prices quoted in the Primary Document will include the cost of insurance and shipping.  Buyer shall not be liable for any federal excise, state and or local taxes, and custom duties unless such federal excise, state and or local taxes, and custom duties are shown separately on Seller’s invoice.  Seller shall not substitute Items or ship more than the quantity ordered without express written authority from Buyer.

    4. OVERSHIPMENTS; UNDERSHIPMENTS:  Buyer will have no liability for payment of Items delivered to Buyer that exceed the quantities specified in the Delivery Schedules.  Overshipments of any Items shall, if so requested by Buyer, be returned to Seller at Seller’s expense.  Buyer reserves the right to reject Items.  In case of undershipments of any Items, Seller shall, if so requested by Buyer, immediately at its cost ship the additional Items needed to fully complete the Primary Document to the destination and by the time designated by Buyer.

    5. INVOICES:  All invoices and packing lists shall show the Primary Document number, material description, tag number (if applicable), Seller’s parts numbers (if applicable), net unit price, and extended price.  The combination of two or more item numbers into one lump sum price is not acceptable.  Partial shipments shall be invoiced for only amounts shipped.  Seller shall not combine two or more Primary Documents on one invoice.  Buyer reserves the right to return all invoices or related documents submitted incorrectly, and payment terms will be determined as of the date the latest correct invoice or other document required by Buyer is received.

    6. INSPECTION PERIOD: All Items shall be received and Services performed subject to Buyer’s acceptance or rejection on or before the end of the Inspection Period.  As part of the Inspection Period, Buyer shall have no less than a reasonable time after delivery of any Items, and after the performance of Services, to inspect such Items or Services before accepting or rejecting such Items or Services.  Without limiting the foregoing, “Inspection Period” means, absent language in the Primary Document defining the Inspection Period, a reasonable period of time after receipt of such Items or completion of the Services, and including, for those Items whose conformity with the Contract Documents cannot be ascertained until such Items are installed and/or tested and/or tuned and calibrated and/or used in trials in conjunction with other systems or assemblies as determined by Buyer, the time required after receipt by Buyer for such installation and/or testing and/or tuning and calibration and/or use in trials.  Partial or total payment by Buyer for Items under the Primary Document prior to the end of the Inspection Period shall not constitute its acceptance thereof, nor shall such payment remove Seller’s responsibility for any nonconforming Items or Services.  Neither inspection nor failure to inspect by Buyer shall relieve Seller of any obligations, representations or Seller’s Warranties. No payment for or acceptance of Items or Services by Buyer shall constitute a waiver of any of the foregoing nor shall anything herein contained be construed to exclude or limit any Seller’s Warranties.

  9. REJECTED OR NONCONFORMING ITEMS OR SERVICES: If any Service, Item, or shipment of Items is rejected as nonconforming by Buyer as of or before the end of the Inspection Period (“Rejected Items”), Seller shall, at its cost and as directed by Buyer (i) accept a Return of such Item or Items, (ii) repair such Rejected Items or reperform the Services, which work shall include, but shall not be limited to, performing such additional work as is necessary to make such Rejected Items or Services fully conforming (the “Remedial Work”), or (iii) replace the Rejected Items with new Items, such replacement Items to be delivered in accordance with any and all instructions provided by Buyer and to include at Seller’s cost any required installation (including removal of the Rejected Item).  Remedial Work shall also on completion of the Services include any action required to be taken by Seller to cause the Services to comply with the terms of the Contract Documents.

  10. RIGHT TO PERFORM REMEDIAL WORK: If Buyer determines in its sole discretion that Remedial Work is necessary for the repair of any Rejected Items on completion of the Services, then Buyer may elect to either perform the Remedial Work itself or to have a third party perform the Remedial Work, in which case the cost of such Remedial Work shall be offset against the amounts otherwise due to Seller for such Rejected Items or Services or charged separately by Buyer to Seller.  Further, Buyer may require that the Remedial Work be performed on Buyer’s premises by Seller, in which case the Buyer shall provide Seller with reasonable access to its premises and otherwise assist Seller with such arrangements as are necessary to perform the Remedial Work.  With respect to any Rejected Items to be repaired or Services to be performed, Buyer will not be deemed to have accepted such Items or Services unless and until the Rejected Items or Services are fully repaired to the requirements of the Contract Documents and are independently accepted in writing by Buyer following such Remedial Work.

  11. DELAY:

    1. NOTIFICATION OF DELAY; SUBSTITUTE ITEMS:  Time is of the essence in the performance of the Contract Documents.  If at any time Seller has reason to believe that deliveries of any Items or completion of the Services may not be made in accordance with the Delivery Schedules, Seller shall immediately notify Buyer, setting forth the cause for the anticipated delay.  Any oral communication shall be immediately confirmed in writing. If Seller’s shipment is delayed, Seller shall, at its cost (unless excused in Section 11(b)), send Items at such time and in such manner as instructed by Buyer.  In the event of any delay not excused under Section 11(b), Buyer shall have the right to immediately acquire substitute or replacement Items or Services from one or more alternate sources and, in such event, there may be a proportionate reduction of the quantity of Items required from Seller, or a termination of the Contract Documents, as appropriate.  In the event of termination, any funds previously paid by or on behalf of Buyer shall be promptly returned to Buyer.

    2. FORCE MAJEURE: Except as otherwise provided in Section 11(c), any delay or failure of Seller to perform its obligations hereunder shall be excused if and to the extent that it is directly caused by an event or occurrence beyond Seller’s reasonable control and without its fault or negligence, such as, acts of God, actions by any government authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, acts of terrorism or court injunction or order; provided, however, Buyer shall have the right to terminate the Contract Documents as set forth in Section 4 above.

    3. LABOR AND SUPPLY PROBLEMS NOT FORCE MAJEURE: Notwithstanding anything in this Section 11 to the contrary, no delay or failure of Seller to perform its obligations hereunder shall be excused to the extent that it is caused by labor problems of Seller and/or its suppliers such as, by way of example and not by way of limitation, lockouts, strikes and slowdowns or the inability of Seller and/or its suppliers to obtain power, material(s), labor, equipment or transportation.

  12. NON-WAIVER:  Failure of Buyer to insist upon strict performance of any of the terms and conditions hereof, or failure or delay to exercise any rights or remedies provided herein or by law or to properly notify Seller in the event of Breach (as hereinafter defined), or the absence of or payment for any goods hereunder shall not release Seller of any of the Seller’s Warranties or obligations under the Contract Documents and shall not be deemed a waiver of any right of Buyer to insist upon strict performance hereof or any of its rights or remedies as to any such Items or Services, regardless when shipped, received, performed or accepted, or as to any prior or subsequent default hereunder.  Any purported oral modification or rescission of the Contract Documents by Buyer shall not operate as a waiver of any of the terms hereof.

  13. COMPLIANCE WITH LEGAL REQUIREMENTS; LAWS:  Seller warrants that all Items and Services sold hereunder have been produced, sold, delivered, and furnished in strict compliance with all applicable state, federal, provincial and local laws, statutes, rules, regulations and ordinances, and all conventions and standards, including, but not limited to, all applicable laws regulating, related to or imposing a liability or standard of conduct concerning the environment or any hazardous substance or environmental activity (collectively, “Laws”), as amended from time to time, of each and all countries (“Applicable Countries”) where the Items are to be manufactured or delivered, or the performance of the Services is to occur, or that relate in any way to the manufacture, labeling, transportation, importation, exportation, licensing, certification or approval of Items or performance of Services (“Legal Requirements”).  Seller shall execute and deliver such documents as may be required by Buyer to effect or evidence compliance with the provisions of this section.  All Legal Requirements required to be incorporated in agreements of this character are hereby incorporated herein by this reference.

  14. CONFIDENTIALITY: Seller shall not disclose the existence or contents of the Contract Documents to any third party other than Seller’s representatives (including its officers, employees, accountants, attorneys, consultants and lenders) on a need-to-know basis, and further agrees not to communicate, divulge or otherwise make available to any third party, other than Seller’s representatives on a need-to-know basis, any information with respect to the Contract Documents including, but not limited to, the conditions and terms of the Contract Documents or proprietary information of Buyer learned by Seller which is confidential and/or believed to be confidential, without first obtaining prior written consent from an authorized representative of Buyer.  In the event Seller breaches this non-disclosure covenant, Buyer shall have the right, in its sole discretion, to immediately terminate the Contract Documents upon delivery of written notice to Seller and to pursue any and all legal remedies Buyer may have against Seller.

  15. INSURANCE:  Seller shall, at its own cost and expense, maintain and carry in full force and effect general liability (including products/completed operations coverage), general automotive liability, public liability, builder’s risk, workers’ compensation liability, property damage (fire, casualty and theft) insurance and any other insurance required under the Contract Documents.  All insurance shall be maintained in such amounts and with such deductibles as are commonly carried by prudent businesses similarly situated or as is otherwise required by applicable law.  Seller’s insurance shall insure against any liability for loss, injury, damage or claims caused by or arising out of or in connection with the operation of Seller’s business including injury to or death of Seller’s employees, agents, or any other persons and damage to or destruction of public or private property.  Upon request, Seller shall provide to Buyer proof of insurance, and if necessary for Seller’s employee(s) to be on Buyer’s property for any reason, including, but not limited to the performance of Services or Remedial Work, proof of insurance shall be provided before such employee(s) may enter the property. The insurance required by this Section 15 shall include a waiver of subrogation and name Buyer and its affiliates as named insureds. 

  16. WARRANTY:

    1. EXPRESS WARRANTIES: Seller expressly warrants that all Items and Remedial Work will be manufactured, provided and transported to Buyer in full and complete conformity with the Contract Documents, including without limitation all Specifications and Legal Requirements.  Further, Seller expressly warrants that all Items and Remedial Work will be merchantable, of good material and workmanship and free from defects.  Seller expressly warrants that the design shall be free from defects.  Seller expressly warrants that all Items will be fit and sufficient for the purposes intended by Buyer (collectively, “Seller’s Warranties”).  For any Items which contain patented, trademarked or copyrighted components which are otherwise the subject of intellectual property rights held by third parties, Seller further warrants that it has all rights to such intellectual property sufficient to permit its full and complete performance hereunder and afford Buyer all of the benefits provided for herein.  Services, and to the extent that Remedial Work is required by the Contract Documents, Remedial Work, will be performed in a good and workmanlike manner utilizing personnel with skill levels appropriate to the task and in full and complete accordance with the Contract Documents.  Seller warrants full, clear, and unrestricted in and to all Items, goods, equipment, materials, and other items furnished by Seller in performance of the Contract Documents, free and clear of any and all liens, restrictions, reservations, security interests, and/or encumbrances of any kind whatsoever.

  17. BREACH; DEFAULT:   The following events shall constitute a default (a “Default”) under the Contract Documents:  (a) if Seller fails to timely perform or deliver Items or Services as specified in the Contract Documents, (b) if Buyer determines in its sole discretion that Items are not of sufficient quality; (c) if Seller does not make scheduled deliveries as specified in the Delivery Schedules; (d) if Buyer reasonably determines that Seller has failed to make progress in securing timely performance of its work hereunder and Seller does not correct such failure within thirty (30) days after the date of a written notice from Buyer specifying such failure; (e) if Seller repudiates or breaches any of the terms hereof, including, but not limited to, Seller’s Warranties; (f) if Buyer determines in its sole discretion that there is a substantial adverse change in the business or financial condition of Seller, including without limitation the filing by Seller of a voluntary petition in bankruptcy or the filing against Seller of an involuntary petition in bankruptcy which is not dismissed within thirty (30) after its filing; or (g) if Buyer determines in its sole discretion that Seller has failed to make adequate plans to eliminate foreseeable risks to its ongoing performance of the Contract Documents, such as (by way of example), transportation interruptions, material shortages, and similar risks.

  18. REMEDIES:

    1. REMEDIES UPON DEFAULT OF SELLER:  Upon the occurrence of a Default by Seller, Buyer shall be entitled to exercise any or all of the following remedies: (i) canceling and terminating the any or all of the Contract Documents, which cancellation shall be effective immediately on the date of the notice of the cancellation; (ii) if requested, having all property of Buyer in Seller’s possession and technical information immediately returned to the applicable Buyer, such return to be at Seller’s cost and expense; (iii) bringing suit to seek all rights and remedies to which it may be entitled, including all damages, under the UCC or other similar legislation, including personal property security legislation as a buyer of goods; (iv) demand that Seller provide Buyer with Remedial Work reperformance of the Services and/or replacement Items in conformity with the Contract Documents; (v) purchasing reasonably equivalent Items and Services, at Seller’s expense; and (vi) set-off against any amounts owed to or held by Seller and costs incurred in Buyer’s exercise of its rights under the Contract Documents prior to or as a result of Seller’s Default.

    2. REMEDIES FOR BREACHES OF SELLER’S WARRANTIES:  Both prior to and after the end of the Inspection Period, Buyer’s remedies shall include, but shall not be limited to, requiring Seller, at its cost, (i) to accept a Return of such Item(s), (ii) to perform the Services or to perform the Remedial Work and/or (iii) to provide replacement Items which fully comply with the requirements of the Contract Documents and all Specifications.  Except as otherwise provided in the Primary Document, Seller’s liability for breaches of Seller’s Warranties shall extend to all damages proximately caused by the breach of any of the Seller’s Warranties, including expenses associated with (i) the replacement, repair and/or removal of defective Items and (ii) installation of replaced or repaired Items or reperformance of Services, but such liability shall in no event include loss of profit or loss of use.

    3. DAMAGES; ADDITIONAL REMEDIES:  Buyer shall also be entitled to any or all of the following remedies for damages, such remedies to be in addition to all other remedies Buyer may be entitled to under Section 18(a), the UCC, or other similar legislation as a buyer of goods.  On rejection or revocation of acceptance by Buyer, or upon the occurrence of a Default by Seller, Buyer shall have a security interest in Items in its possession or control which shall secure a claim by Buyer for (i) any payments made to Seller with respect to such Items and (ii) any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such Items.  In all instances provided for under the UCC or other similar legislation as a buyer of goods, Buyer shall be entitled to recover from Seller, and Seller shall reimburse Buyer for, any and all actual, incidental and consequential damages of Buyer resulting from Seller’s Default, including but not limited to, costs, expenses and losses of Buyer resulting from (i) inspecting, transporting, sorting, repairing or replacing defective, delayed or nonconforming Items and (ii) claims or personal injury or property damage caused by such Default.

    4. NO ELECTION: The remedies reserved in these Terms and Conditions shall be cumulative and additional to any other or further remedies elsewhere in the Contract Documents and provided by law or equity.  Resort to any remedy by Buyer, as provided in these Terms and Conditions or otherwise, shall not be deemed an election of remedies or a waiver of any breach or Default by Seller.

  19. CHOICE OF LAW AND VENUE:  The Contract Documents and the rights and obligations of the parties under the Contract Documents shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended; rather, the Contract Documents and the rights and obligations hereunder shall be governed by the domestic law of the State of Texas, including its provisions of the UCC, regardless of any choice of law or conflicts of law rule or regulation of any jurisdiction that would cause the application of the laws of any other jurisdiction.  The obligations and undertakings of each of the parties to the Contract Documents shall be performable in Harris County, Texas, and each of the parties hereby expressly and irrevocably agrees and consents that any local suit, action, or proceeding arising out of or relating to the Contract Documents and the transactions contemplated herein shall be instituted in a state or federal court sitting in Harris County, Texas, and both parties expressly waive any objection which they may have now or hereafter to the laying of the venue or to the jurisdiction of any such suit, action, or proceeding, and irrevocably submits generally and unconditionally to the jurisdiction of any such court in any such suit, action, or proceeding.

  20. NO ASSIGNMENT:   Any assignment of Seller’s rights or obligations hereunder or hypothecation hereof in any manner, in whole or in part, voluntarily, by operation of law, or otherwise, without the prior written consent of Buyer shall be void. 

  21. SELLER’S LIABILITY AND INDEMNITY OF BUYER:

    1. GENERAL INDEMNITY: Seller shall indemnify, hold harmless and defend Buyer and Buyer’s directors, owners, subsidiaries, employees, contractors of any tier, agents, servants, representatives and lease hold co-owners from and against any and all claims, damages, losses, liabilities and expenses, including reasonable attorney’s fees and costs, of whatever nature, attributable to injury, sickness, disease or death, or to injury or destruction of property, including the Items, including loss of use resulting therefrom, directly or indirectly, caused by or arising out of or in connection with, in each case only if attributable in whole or in part to the negligence or willful misconduct of Seller, any of Seller’s employees, contractors of any tier, agents, servants and representatives (i) any action, omission or operation under the Contract Documents, (ii) the Services, to the extent not performed on or while traveling to Buyer's premises or property, or not identified to a specific well or (iii) the Items.  Seller shall not be required to indemnify Buyer or their employees, contractors of any tier, agents, servants and representatives hereunder for any claims, damages, losses and liabilities, caused solely by the negligence of Buyer, its directors, owners, subsidiaries, employees, contractors of any tier, agents, servants and representatives where such indemnification is contrary to law.  It is the intent of the parties that Seller shall indemnify Buyer, and its employees, agents, servants and representatives to the fullest extent permitted by law. 

    2. INFRINGEMENT INDEMNITY:    Without in any manner limiting the foregoing indemnities, the Seller further agrees that it shall, at its own expense, hold Buyer harmless and defend Buyer from any claim, suit, or proceeding brought against Buyer which is based upon a claim, that the Items, Services or any part thereof furnished under the Contract Documents constituted an infringement of any patent, copyright, trademark, or proprietary information rights of others and Seller shall pay all damages and costs awarded against Buyer; except to the extent such infringement is due to Items prepared or Services performed to Buyer’s Specifications.  In the event that use by Buyer of such Items are in such suit held to constitute infringement, and the use of such Items is enjoined, in whole or in part, Seller shall, at its own expense, and at Buyer’s option, either procure for the Buyer the right to use said Items or replace the same with substantially equal but non-infringing Items, or modify the same so that it becomes non-infringing, or remove said Items and refund the purchase price and the transportation and installation costs relating thereto.

    3. NOTICE OF OCCURRENCES:  In the event of any accident or occurrence resulting in injury, death, sickness or disease to persons or damage to property, Seller shall immediately notify Buyer of the accident or occurrence and shall submit a written report within three (3) calendar days.

    4. LIMITATIONS NOT APPLICABLE: In claims against any person or entity indemnified under this Section 21 by an employee of Seller, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Section 21 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for Seller under workers’ or workmen’s compensation acts, disability benefit acts or other employee benefit acts.

    5. PAYMENT OF COSTS: Seller shall pay all costs, damages, losses, liabilities, and expenses incurred by Buyer in the enforcement of the Contract Documents including reasonable attorney’s fees.

22. INDEPENDENT CONTRACTOR:    Seller is an independent contractor and neither party shall be considered the              agent, servant, or employee of the other for any purpose whatsoever.  Seller shall be solely responsible for all goods        provided to Buyer pursuant to the terms of the Contract Documents and any Services related thereto.  Seller shall            not subcontract any of its obligations hereunder without prior written consent of Buyer.

23. NOTICE:    All notices for the purposes of the Contract Documents shall be given in writing, which shall include                transmissions by telex or facsimile.  Notices and other communications shall be directed to the parties at the                    addresses set forth in the Primary Document.

24. SURVIVAL:  Any provisions of the Contract Documents which by their nature extend beyond the expiration,                        termination or cancellation of these Terms and Conditions shall remain in full force and effect until fulfilled and/or            performed and shall inure to the benefit of and be binding upon Seller and Buyer and their respective successors            and assigns.