SUNDYNE, LLC FIELD SERVICES TERMS AND CONDITIONS
These Field Services Terms and Conditions supersede Buyer’s proposed terms and conditions, if any. This contains the entire agreement of the parties, and all proposals, negotiations, representations, warranties or agreements made or entered into, prior to or contemporaneously with this quotation are excluded, whether oral or in writing. Prices set forth in this quotation are based upon the terms and conditions set forth herein.
ANY TERMS PROPOSED WHICH ADD TO, VARY FROM, OR CONFLICT WITH THE TERMS HEREOF ARE HEREBY OBJECTED TO AND REJECTED AND SHALL NOT CONSTITUTE ANY PART OF ANY CONTRACT RESULTING FROM THIS QUOTATION. ANY SUCH PROPOSED TERMS SHALL HAVE NO FORCE OR EFFECT, AND THE TERMS HEREIN SHALL CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS AND CONDITIONS OF ANY CONTRACT RESULTING FROM THIS QUOTATION AND MAY BE MODIFIED ONLY BY WRITTEN INSTRUMENT EXECUTED BY THE AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.
1. Taxes: Buyer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Buyer hereunder; provided, that, in no event shall Buyer pay or be responsible for any taxes imposed on, or regarding, Sundyne’s income, revenues, gross receipts, personnel, or real or personal property or other assets. Except for invoiced payments that the Buyer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall be responsible for obtaining any necessary governmental clearances which may be required by any government other than the government of the United States.
2. Force Majeure: Sundyne shall not be liable for any failure to perform its obligations under any contract resulting from this quotation where such failure is due to no fault of Sundyne, including, but not limited to, failures arising directly or indirectly from or contributed to by any acts of God, acts of Buyer, acts of civil or military authority, priorities, fire, strikes or other labor disputes, accidents, floods, epidemics, war riot delays in transportation, lack of or inability to obtain raw materials, components, labor, fuel or supplies, or other circumstances beyond Sundyne’s reasonable control, whether similar or dissimilar to the foregoing. Any additional costs incurred by Sundyne due to the forgoing shall be charged to Buyer.
3. Warranty; Limitation of Liability: Sundyne warrants that it shall perform the services (a) using personnel of industry standard skill, experience, and qualifications; and (b) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services. SUNDYNE (a) MAKES NO WARRANTIES EXCEPT FOR THOSE SET OUT ABOVE; AND (b) DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Sundyne’s sole and exclusive liability and Buyer’s sole and exclusive remedy for breach of the limited warranty set out in this Section shall be reperformance of the affected services.
THE REMEDIES PROVIDED FOR IN THE PRECEDING PARAGRAPH SHALL CONSTITUTE THE SOLE RECOURSE OF BUYER AGAINST SUNDYNE FOR BREACH OF ANY OF SUNDYNE’S OBLIGATIONS UNDER ANY CONTRACT RESULTING FROM A QUOTATION OR CONTRACT, WHETHER THE CLAIM IS MADE IN TORT, CONTRACT OR IN ADMIRALTY, INCLUDING CLAIMS BASED ON WARRANTY, NEGLIGENCE, OR OTHERWISE.
IN NO EVENT SHALL SUNDYNE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUNDYNE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF
ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SUNDYNE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SUNDYNE PURSUANT TO A PURCHASE ORDER GIVING RISE TO LIABILITY.
4. Indemnity: Buyer will, to the extent permitted by law, indemnify, defend, and hold harmless Sundyne against all claims, liabilities, damages, losses, or expenses asserted against or incurred by Sundyne to the extent directly or indirectly related to or arising out of the fault, negligence, willful misconduct, breach of contract, or violations of law by Buyer, its employees, agents, subcontractors, or assigns in connection with this Agreement.
5. Mobilization Costs: Mobilization costs shall be a fixed cost per trip, such cost includes, but not be limited to, airfare, travel days, travel costs to and from airports, airport parking, visa costs, work permit costs, first night accommodation and meal costs. Domestic air travel shall be booked in economy class; however, all flights where travel time is over 10 hours shall be booked in business class. If a trip is cancelled prior to departure, cancellation charges (i.e. airfaire, change fees, etc.) shall be invoiced at actual cost plus a fifteen percent (15%) administrative fee.
6. Billable Time: Billable time shall be calculated from the day field service personnel depart from their home office until their return, including weekends and holidays. Travel time shall be a component of recorded billable time and shall accrue from the time field personnel leave their home until they reach the accommodation of the final site destination. If the travel time exceeds 16 hours, a second day of travel shall be added to the quotation. Each day worked shall be payable, whether worked or not. Daily rates shall not be billed pro rata; the minimum charge shall be for one day at the applicable daily rate. Standby time shall similarly be billed as per daily rates. Weekend standby days shall be billed at the applicable weekend rate. Daily rates provided in Buyer’s quotation shall be the sum of all daily expenses (i.e. lodging, meals and transportation) plus, either (a) the agreed upon daily rate if the workday consists of eight (8) hours or less or (b) the sum of the daily rate and the applicable overtime premium if Buyer specifies that hours in excess of eight (8) hours are required. Since daily rates shall be inclusive and fixed, no receipts shall be provided. Any proposed rates shall be valid until the end of the calendar year during which the proposal was provided; following which such rates shall be subject to an annual escalation of up to five percent (5%). Field service personnel shall not be required to perform, and shall have the authority to decline, any work in excess of twelve (12) hours per day. Workdays in excess of 16 hours are prohibited. A minimum of eight (8) hours of rest are required for Field service personnel between workdays. This rest period shall be a minimum of eleven (11) hours for French field service personnel per French labor law. Sundyne reserves the right to replace, at Buyer’s expense, its engineer or technician every four (4) weeks for onshore service and every two (2) weeks for offshore service.
7. Hazardous or Harsh Environments: A daily surcharge shall be applied for time in hazardous or harsh environments. Examples include areas of political unrest such as tumultuous areas in Mexico or specific areas In the Middle East, as well as environmental extremes such as Siberia or Alaska in the winter. The daily surcharge for such environments shall be $500 USD or its equivalent in another currency. If the end user site is located in an area of the world where
there are geopolitical or security concerns or problems, Sundyne reserves the right to decline any request for assistance, at Sundyne’s sole discretion. If we nonetheless agree to attend the site under these circumstances, we will apply special rates for the provisions of labor, insurance, travel and security arrangements required to mitigate the risk associated with executing the project. These projects shall be discussed on a case-by-case basis.
8. Safety and Supervision: Buyer must provide job site regulations, including special safety clothing requirements, special safety training, and any other specific training or information needed in order to complete the job. Buyer shall ensure that the field service personnel are not exposed to unreasonable hazards on or in the vicinity of the worksite and shall, if necessary, render first aid to Sundyne’s personnel. Buyer shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the worksite. Sundyne shall
ensure that the field service personnel comply with Buyer’s documented safety regulations provided to the field service personnel while at the worksite. Sundyne reserves the right to recall personnel at Buyer’s expense if the worksite does not meet reasonable health and safety standards.
9. Method and Manner of Performance: The details of the method and manner for performance of the services by Sundyne shall be under its own control. Sundyne shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the services. Nothing in this Agreement shall give Buyer the right to instruct, supervise, control, or direct the details and manner of the completion of the services. Sundyne is for all purposes an
independent contractor and in no event will Sundyne be considered an agent or employee of Buyer or any of its subsidiaries or affiliates for any purpose.
10. Jurisdiction; Venue: This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims are governed by, and construed in accordance with the laws of Colorado, (including its statutes of limitations and choice of law statutes), without giving effect to any conflict of laws or provisions thereof that would result in the application of the laws of a different jurisdiction. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Denver, Colorado. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
AFOREMENTIONED COURTS; (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; (C) WAIVES ANY RIGHT TO TRIAL BY JURY; AND (D) WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY COLORADO LAW. No action for any contract resulting from this
quotation or any covenant or warranty arising therefrom, shall be brought more than one year after the cause of action has accrued.
11. Amendment: Any contract resulting from this quotation may not be modified or rescinded except in writing signed by Sundyne and Buyer. If all or part of any contract resulting from this quotation is terminated by such modification or rescission, Buyer, in the absence of a contrary written agreement between Sundyne and Buyer, shall pay Sundyne the contract price for all work performed through the date of termination, plus all costs incurred by Sundyne in settling any
claims with subcontractors or suppliers and any administrative expenses incurred.
12. Waiver: No waiver of any right, remedy, power, or privilege under these terms (“Right(s)”) is effective unless contained in a writing signed by the party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right.