Terms and Conditions

ELITE TUBULAR, LLC TERMS AND CONDITIONS

All sales of either new or used drill pipe, drill collars, slick or spiral heavy weight drill pipe, scrap metals, steel products, tubulars, and any other goods (collectively, the “Products” and individually a “Product”) offered or sold by Elite Tubular, LLC (“Seller”) shall be subject to these terms and conditions (collectively, the “Terms and Conditions”), which shall be deemed incorporated into all Sales Orders (as defined below). As used herein, “Buyer” shall mean any individual or entity that purchases any Product. By executing and signing a Sales Order and accepting any Product pursuant thereto, Buyer expressly acknowledges and consents to these Terms and Conditions.

1. SALES ORDERS. Neither the Seller nor the Buyer shall have any obligation to purchase or sell any Product until such time as a contract or sales order (collectively, a “Sales Order”) has been signed by an officer of Seller. Sales Orders may not be accepted by distributors, representatives, or agents of Seller. Any attempted acceptance of a Sales Order in any manner other than as set forth in this paragraph shall be deemed void and of no force and effect.
2. QUOTATIONS AND PRICE ADJUSTMENTS. Seller may give a written quotation (“Quotation”) relating to the sales terms for Products including, but not limited to, the sale price for Products (“Sale Price”). Although not binding on Seller, the Quotation shall only remain valid for the period stated in the Quotation or where no period is stated, the Quotation shall remain valid for ten (10) days after the date of the issuance of the Quotation and thereafter shall be null and void. No Quotation shall be construed as an offer to Buyer and Buyer acknowledges that a Quotation is merely an invitation to the Buyer to submit an order for Products pursuant to the Quotation and neither party shall be bound until the execution of a Sales Order by an officer of Seller. Notwithstanding any Quotation made by Seller, Seller expressly reserves the right to revoke or adjust Quotations and Sale Prices prior to the Seller’s execution of a Sales Order.
3. PRICES, TAXES AND TRANSPORTATION CHARGES. Unless otherwise specified in writing, the Sale Price is exclusive of all customs, duties, charges or surcharges, consular fees, sales, use, excise, turnover, occupational or transportation taxes, or any other taxes imposed by any country or political subdivision thereof (collectively, “Surcharges”) which shall be the responsibility of Buyer. Buyer shall indemnify, defend, and hold the Seller harmless for any and all Surcharges that may arise in connection with a purchase by Buyer of Products and shall promptly reimburse Seller for any Surcharges paid by Seller, which reimbursement shall be independent of and in addition to the Sale Price.
4. DELIVERY. Unless otherwise specified in the Sales Order, delivery of Products shall be F.O.B. Seller’s shipping yard and Buyer assumes responsibility at the F.O.B. point for transportation charges. Delivery and shipping dates are approximate. Seller is not responsible for delivery or shipping delays. Delivery and shipping dates are triggered upon Seller’s acceptance of a Sales Order. Seller reserves the right to make deliveries in batches (a “Batch Delivery”). A delay in delivery or shipping, or the receipt by Buyer of a Batch Delivery, shall not give the Buyer the right to reject any Product or relieve Buyer of any of its obligations including, but not limited to, payment.
5. TERMS OF PAYMENT. Unless otherwise agreed by Buyer and Seller and confirmed in the Sales Order, payment for Products is due and payable immediately upon Buyer being notified that the Products are ready for pick-up or delivery from the Seller, whichever is the earliest, and in any event prior to pick-up or delivery of any such Products. The Seller reserves the right in its sole and absolute discretion to set forth such other terms relating to the payment for Products which additional terms shall be set forth in the Sales Order. Without limiting the foregoing, Seller reserves the right to: (a) decline Buyer’s request for credit; (b) require payment for Products in advance; or (c) in the case of Products for delivery to destinations outside of the continental U.S.A., require payment by satisfactory and irrevocable documentary letter of credit, confirmed by a bank or financial institution acceptable to Seller, or by documentary sight draft, as the Seller may elect. All payments shall be in U.S. DOLLARS unless otherwise set forth in the Sales Order. Acceptance and endorsement by Seller of a payment for less than the full amount shall not be deemed to be an admission of payment in full and any conditions to the contrary which may be noted on such payment shall not be binding on Seller. All past due amounts shall accrue interest at a rate of eighteen percent (18%) per annum, or at the Maximum Lawful Rate, whichever is lower. As used herein, “Maximum Lawful Rate” shall mean the maximum lawful non-usurious contract rate of interest allowed by the applicable law of the State of Texas.
6. CANCELLATION, COUNTERMAND, AND RETURN OF GOODS. Sales Orders accepted hereunder may not be cancelled, countermanded or deferred (collectively a “Modification”), or Products returned by Buyer, except with Seller’s prior written consent , which consent may be withheld in the Seller’s sole and absolute discretion. Notwithstanding any consent from the Seller on a Modification or the return of any Product, Buyer shall indemnify, defend and hold the Seller harmless against all losses resulting therefrom, including the profit lost on any part of the Sales Order involved, which profit amount shall be determined by Seller consistent with Seller’s customary practices. Unless otherwise authorized in writing by Seller, prior to Buyer’s return of any Product that may be authorized by Seller pursuant to this paragraph, Buyer shall prepay to Seller the shipment charges associated with the return of such Product. Without limiting the foregoing, in addition to all other amounts, a two percent (2%) charge shall be applied to any Modification or returned Product.
7. TITLE AND RISK OF LOSS. Notwithstanding anything herein to the contrary, Buyer shall be solely responsible for any loss of or damage to Products that occurs during a shipment after the F.O.B. shipping point or by a carrier selected by Buyer. Seller shall be solely responsible for any loss of or damage to a Product that occurs during a shipment made by Seller, or by a carrier selected by Seller, subject to the Delivery provisions contained in these Terms and Conditions. Unless otherwise set forth in the Sales Order, the Products shall be stored at the F.O.B. shipping point unpacked and unprotected and the Buyer assumes the risk of loss associated with the same.
8. SELLER’S DISCLAIMER OF ALL WARRANTIES. SELLER MAKES NO, AND DISCLAIMS ALL, WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND WARRANTIES OF UNINTERRUPTED OR ERROR FREE PERFORMANCE OF PRODUCTS.  BUYER ACKNOWLEDGES THAT PRIOR TO DELIVERY OF THE PRODUCTS, IT HAS HAD AMPLE OPPORTUNITY TO INSPECT THE PRODUCTS AND ACCEPTS THE PRODUCTS IN THEIR CURRENT CONDITION, “AS IS, WHERE IS.”
9. LICENSES AND PERMITS. Buyer shall be solely responsible for obtaining all licenses or permits necessary to import or export Products, provided that at Buyer’s written request and Buyer’s sole expense, Seller will endeavor to assist Buyer in obtaining such licenses and permits.
10. NON-DISCLOSURE OF CONFIDENTIAL OR PROPRIETARY INFORMATION. Buyer agrees to not disclose, further distribute, copy or reproduce to or for any person all or any part of Seller’s Confidential Information. Seller’s Confidential Information shall at all times remain the sole and absolute property of Seller. As used herein, “Seller’s Confidential Information” includes (a) all information, data or material disclosed by Seller, its agents, or representatives, in connection with the sale of a Product which is not generally known by the public or by parties which are competitive with or otherwise in an industry, trade or business similar to Seller; and (b) devices, secret inventions, processes, compilations of information, records, source codes, object codes, and specifications, that are owned by Seller and that are used in the operation of its business, also including, but not limited to, customer lists, financial, accounting, statistical, product design or manufacturing methods, and personnel information concerning Seller.
11. FORCE MAJEURE. In the event that performance by Seller of any of its obligations under the terms of this Agreement shall be interrupted by an act of God, by an act of war, riot, or a civil disturbance, by an act of state, by strikes, fire, flood, hurricane, tropical storm or by the occurrence of any other event beyond the reasonable control of the Seller, and which by the exercise of due diligence could not reasonably be prevented, Seller shall be excused from its obligations under the Sales Order upon written notice to the Buyer.
12. GENERAL PROVISIONS. These Terms and Conditions and any related Sales Order accepted by Seller (collectively, the “Agreement”), contain the entire understanding of the parties with respect to the transactions contemplated herein and supersede all prior agreements, understandings, negotiations, and discussions among the Buyer and Seller with respect to such transactions. The Agreement, in whole or in part, may not be amended, modified, supplemented, restated, discharged or waived except in writing and with Seller’s express written consent. No waiver of any of Seller’s rights under the Agreement shall be effective against Seller unless supported by consideration and expressly set forth in a writing signed by Seller. A failure by Seller to enforce any right pursuant to the Agreement shall not be construed as a waiver of such right or of any other rights thereunder. Seller acknowledges that notwithstanding any State’s conflicts of laws provisions, the laws of the State of Texas shall exclusively apply to claims arising from the Agreement. Venue for any proceeding under the Agreement shall lie exclusively in the state or federal courts located in Midland, Midland County, Texas. Buyer shall reimburse Seller for all fees, costs and expenses reasonably incurred in the enforcement of Seller’s rights under or with respect to the Agreement, including, without limitation, reasonable attorneys’ fees.