1. Applicability.
    1. This Purchase Order is an offer by American Petroleum Equipment & Construction Company, Inc., (“Buyer“) for the goods, services, materials and/or equipment (“Goods“) from the party to whom this purchase order is addressed (“Seller”) in accordance with and expressly subject to these terms and conditions (“Terms”), together with the terms and conditions contained on the face of this Purchase Order (the Terms and Purchase Order are collectively referred to herein as the “Order”).
    2. This Order constitutes the entire agreement between Buyer and Seller and supersedes all proposals, negotiations, and counterproposals regarding the Goods. Seller’s inclusion or attachment of any different or additional terms, including in any purported acceptance or acknowledgment of this Order, is rejected and such different or additional terms shall be null and void.
  2. Acceptance of Terms. Any of the following shall constitute Seller’s acceptance of the Order: i) Buyer’s receipt of Seller’s executed Order, ii) Seller’s shipment or provision of any of the Goods, or iii) Seller’s acceptance of payment for any of the Goods.
  3. Price/Payment
    1. All prices are as expressly set forth on the face of this Order and include: i) packaging, insurance, transportation, and delivery costs, and ii) applicable taxes, including all sales, excise, use, goods and services, value added, withholding, or other governmental taxes, charges, and levies.
    2. Seller shall issue written invoices to Buyer at or promptly after the completion of delivery of the Goods. Buyer shall pay all undisputed and properly invoiced amounts net 45 days. Where Goods are delivered in more than one shipment, Seller shall send a separate invoice for each shipment. Invoices must include unit descriptions, quantities, and pricing. Buyer is not obligated under any legal or equitable theory to pay for Goods invoiced more than 60 days after delivery.
  4. Inspection/Remedies
    1. All Goods must strictly conform to Buyer’s specifications, drawings, designs, samples, and other provided requirements and must be of the quality specified. No deviations or substitutions are permitted absent Buyer’s prior written consent. Where no specifications are provided, the Goods must be of equal or greater quality as industry standards require. Upon Buyer’s request, Seller shall provide documentation establishing the quality and conformance of the Goods.
    2. In the event the Goods are defective or nonconforming, Seller shall, at Buyer’s option, promptly repair, replace, re-perform or refund the amount paid for such Goods, and shall pay to Buyer all direct, incidental or consequential damages arising from the provision of such defective or nonconforming Goods. The Seller shall bear the cost of shipping or re-performing and risk of loss of all defective or nonconforming Goods while in transit or while being re-performed.
    3. Buyer shall be entitled to reimbursement from Seller of all internal and external costs and expenses (including, but not limited to, legal fees and court costs) incurred by Buyer in connection with any claims by Buyer regarding Seller’s Goods or the timely delivery thereof, including claims for failure or delay of delivery, defects, nonconformance, and breach of warranty.
    4. Buyer reserves the right by written notice to cancel this Order or require adequate assurance of performance from Seller without liability to Buyer in the event of: (i) Seller’s insolvency; (ii) the filing of a voluntary petition in bankruptcy by Seller or any affiliate or supplier of Seller; (iii) the appointment of a receiver or trustee for Seller; or (iv) the execution by Seller of an assignment for the benefit of creditors. Buyer reserves the right to suspend its performance hereunder until such adequate assurance of performance has been received.
  5. Seller expressly warrants that the Goods will be: (i) free from any defects in workmanship, material and design; (ii) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe or misappropriate any third party’s patent or other intellectual property rights. This warranty shall survive any inspection, delivery, acceptance, or payment by Buyer for the Goods.
  6. Changes. Buyer may by written Change Order make changes to this Order, including additions to or deletions from the quantities of items or services ordered or in the designs, specifications, or delivery schedules. If any such change affects the delivery schedule or the amount to be paid by Buyer, Seller shall notify Buyer immediately and negotiate an adjustment. No changes to the Goods, prices, schedule, or the provisions of this Order shall be binding on Buyer unless they are expressly incorporated into a fully executed Change Order.
  7. Time is of the essence for Seller’s performance and Seller shall deliver the Goods by the date(s) set forth in this Order. Seller shall indemnify and hold Buyer harmless from and against any direct, incidental, and consequential damages, costs and expenses, including assessed liquidated damages, suffered by Buyer as a result of any failure by Seller to timely deliver the Goods.
  8. Liability Limitation. Buyer’s liability for any loss or damage arising out of or relating to this Order (including, without limitation, for any breach of these Terms), or otherwise in connection with the receipt of any Goods hereunder or the sale, resale, operation, or use of such Goods, shall be limited to the dollar amount paid by Buyer to Seller for the Goods that gave rise to such loss or damage. Buyer shall not be liable to Seller for special, indirect, punitive, or consequential damages including, but not limited to, lost profits, lost revenue, lost institutional operating savings, loss of goodwill or reputation, loss of use, the costs of procuring substitute products or services, restocking and/or sorting charges or government taxes or fines, even if Buyer has been advised of the possibility of such damages in advance.  This limitation of liability shall apply regardless of the nature of the claim, whether arising in contract or tort, negligence, gross negligence, strict liability, material breach, intellectual property or otherwise. THIS LIMITATION OF LIABILITY REFLECTS A DELIBERATE AND BARGAINED FOR ALLOCATION OF RISK BETWEEN BUYER AND SELLER AND CONSTITUTES THE BASIS OF THE PARTIES’ BARGAIN, WITHOUT WHICH BUYER WOULD NOT HAVE AGREED TO THIS ORDER’S PRICE OR TERMS.
  9. To the maximum extent permitted by law, Seller shall defend, indemnify and hold harmless Buyer and Buyer’s subsidiaries, affiliates, successors or assigns, and the respective directors, officers, shareholders and employees of each against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers arising out of or occurring in connection with the Goods provided by Seller, or Seller’s negligence, willful misconduct or breach of this Order.
  10. Seller shall obtain and maintain, at is sole cost and expense, comprehensive commercial general liability, auto, and workers compensation insurance, all at levels and with insurance carriers reasonably satisfactory to Buyer, so as to insure any and all insurable risks in connection with this Order. Proof of such insurance shall be provided to Buyer upon request. Buyer shall further be listed as an additional insured on Seller’s general and automobile liability policies.
  11. Excusable Failure. Neither party shall be liable for its delay or failure in performing hereunder due to contingencies beyond its reasonable control, including, without limitation, acts of God, fires, floods, war, acts of terrorism, pandemics, epidemics, sabotage, accidents, labor disputes or shortages, governmental laws, ordinances, rules and regulations, whether valid or invalid (and including, but not limited to, import or export prohibitions or limitations, priorities, requisitions, allocations and price adjustment restrictions) and inability to obtain material, equipment or transportation, and any other similar or dissimilar contingency.
  12. Relationship of the Parties. Seller’s relationship to Buyer shall be that of an independent contractor. Neither party shall be deemed to be nor shall either represent itself to be an agent of the other.
  13. In the event of default, bankruptcy, insolvency, or failure or inability of Seller to perform, Buyer may terminate this Order for cause. In the event of such a termination, Buyer shall pay Seller the unit price for each item of Goods properly furnished and accepted prior to termination. Additionally, this Order is subject to termination at the convenience of Buyer by giving notice to Seller at any time. Where this Order is terminated for the convenience of Buyer, Seller shall be paid: (a) the unit price for each item of Goods properly furnished and accepted prior to cancellation, plus (b) the cost of Goods in process of manufacture specially for Buyer, including unused materials, which are identified as being manufactured or fabricated specially for this Order which shall be promptly delivered to Buyer. In the event of such cancellation, Buyer shall not be liable to Seller for any consequential or incidental damages, including any loss of business opportunity, overhead, and/or anticipatory profits. Any of the Seller’s obligations that have accrued prior to termination shall survive said termination.
  14. Law/Venue. This Order shall be governed, construed, and interpreted in accordance with the laws of the State of New York. Seller agrees that the Supreme Court of the State of New York in and for the County of Orange shall have jurisdiction over any claim at law or equity which either party may have against the other and each party hereby consents the jurisdiction of that court to determine any such claim.
  15. Seller shall not assign any of its rights or delegate any of its obligations under this Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this section is null and void.
  16. Setoffs and Counterclaims. All claims for monies due or to become due from the Buyer under this Order shall be subject to deduction by Buyer for any setoff or counterclaim arising out of this or any other of the Buyer’s purchase orders with Seller.
  17. Severability. In the event any one or more of the provisions contained in this Order shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions of this Order, and this Order shall be construed as if such invalid, illegal, or unenforceable provision had never been contained therein.
  18. Title/Risk of Loss. Title shall pass to Buyer upon delivery of conforming Goods. Risk of loss and damage shall remain with Seller until Buyer has accepted the Goods.