TERMS AND CONDITIONS OF PURCHASE Panoramic, LLC

Please read these terms and conditions carefully. They materially affect the parties’ obligations. Buyer will do business only on the terms and conditions of this Purchase Order, provided they are agreed to by Seller pursuant hereto.

1. Acceptance; Contrary Terms; Entire Agreement. This Purchase Order is an offer to purchase the goods, materials, and/or services (“Articles”) described on the face of this Purchase Order, upon the terms and conditions and at the price(s) and with the delivery date(s) stated herein and is not an acceptance of any offer by Seller to sell Articles. Buyer may revoke this offer at any time prior to its acceptance by Seller. Commencement of delivery or written acceptance by Seller of this Purchase Order will result in a firm contract containing all terms and conditions on this Purchase Order. THE CONTENTS OF ANY FORM FROM SELLER NOTWITHSTANDING, THE ONLY EFFECT THEREOF WILL BE TO ACCEPT THIS PURCHASE ORDER ON BUYER’S TERMS AND CONDITIONS, AS SET FORTH HEREIN. ANY PROVISION OF ANY FORM OR OTHER WRITING INCONSISTENT WITH THESE TERMS AND CONDITIONS WILL NOT CONSTITUTE A PART OF THE CONTRACT OF SALE. Buyer’s performance is conditional upon Seller’s assent to these terms and conditions. This Purchase Order is intended by the parties to be the final expression of their agreement and is intended also as a complete and exclusive statement of the terms and conditions thereof.
2. Destination Contract. Unless other wise agreed to between the par ties, the Articles purchased hereunder are purchased FCA Seller’s plant or other designated shipping point with the cost for freight added to the invoice by Seller. Buyer bears the risk of loss under the aforementioned freight terms. Buyer shall file and handle all freight claims if any. Title to the Articles shall revert to Buyer upon shipment. Time is of the essence with regard to Seller’s performance hereunder. Whenever any occurrence or event affecting Seller or its subcontractors or suppliers delays or threatens to delay the timely performance of Seller’s obligations under this Purchase Order, Seller will immediately give written notice thereof to Buyer.
3. Instruction Manuals. Instruction Manuals, if specified, including parts lists and certifications, shall be furnished by Seller. Delivery, installation or erection of Articles shall not be considered to be complete until approved copies of the operations and maintenance manuals are delivered to Buyer. Such manuals shall include drawings of all Articles, including minor parts and sub-assemblies, in such detail as will permit the assembly of each Article for maintenance. Parts drawings shall show such fabrication and assembly details as are required to permit disassembly or assembly of the Articles. Seller shall furnish start-up and instructional service, if specified.
4. Packing. The Articles will be packed and shipped by Seller in accordance with good commercial practices to ensure that no damage results from weather or transportation and in accordance with instructions from Buyer, if any. No extra charges will be allowed for packing and shipping unless specified on the face of the Purchase Order document. Buyer’s order number is to be plainly visible on the packaging.
5. Indemnification by Seller. Seller agrees to defend, indemnify, and hold Buyer, its employees, directors, officers, successors and assigns (individually and collectively the “Indemnitees”), harmless from and against any and all claims, demands, suits, actions, legal proceedings, liabilities, losses, injuries, penalties, assessments, expenses, delay damages, liquidated damages, attorneys' fees and/or costs whatsoever,(collectively “Claims/Liabilities”) incident to or arising out of the performance of the Purchase Order, to the extent such Claims/Liabilities are caused by Seller’s negligence and/or willful misconduct and result from: (a) liability imposed by law or otherwise upon Buyer or any other Indemnitee for damages because of bodily injury, including death, sustained by any person or persons, or on account of damage to property, arising out of or in consequence of the Articles supplied hereunder; (b) intellectual property infringement or other intellectual property claims, except that Seller shall have no liability under this Article 5 for infringement (i) for any method patent where the Articles are used with other apparatus for carrying out a process resulting in a combination of steps which is deemed to infringe a method patent or patent directed to a combination of steps, (ii) where the Articles are modified by Buyer, (iii) where the Articles are used by Buyer in a manner different than the use communicated to and understood by Seller at the time the Articles were sold to Buyer and such use constitutes infringement, or (iv) with respect to claims if infringement where the Articles were designed and manufactured in accordance with the design or specifications furnished or required by Buyer. In the case of claims against Buyer and or the other Indemnitees by any employee of Seller, anyone directly or indirectly employed by the Seller, or anyone from whose acts Seller may be liable, the indemnification obligations under this Purchase Order shall be not reduced in any way by any limitation on the amount or types of damages, compensation or benefits payable by or for Seller under workers’ compensation acts, disability benefits acts or other employee benefits acts.
6. Warranty - Product. In addition to all warranties prescribed by law, any specific warranties explicitly incorporated herein by attachment or otherwise, and Seller’s standard warranty terms; Seller specifically warrants, for 18 months from last shipment, or 12 months from installation, or such other longer period as may be set forth on the face of this Purchase Order or otherwise incorporated by reference herein, that the Articles delivered will be: (a) new and not used; (b) of commercially prevailing grade and quality; (c) merchantable; (d) free from defects in material and workmanship; (e) to the extent the Articles are not manufactured in accordance with a design provided by Buyer, free from defects in design; and (f) fit for the purposes for which such Articles are manifestly intended and ordinarily employed. Seller further warrants for said period that the Articles will conform to any specifications, drawings, and other descriptions, and if applicable, Buyer’s design, and shall be and shall perform for the purpose for which manifestly intended and as represented by Seller. This warranty is in addition to, and not in limitation of, any other warranties applicable by law or otherwise, including all manufacturers’ warranties, which Seller shall exercise its best efforts to assign to Buyer and to enforce for the benefit of Buyer. Seller agrees that in the event any nonconformity with Seller's warranty is discovered, in addition to any other remedy available to Buyer, and not in substitution or limitation thereof, Seller shall be liable for the cost of removal, repair or replacement, re-installation, and transportation of such Articles. The total cost shall be limited to the price paid for the original equipment and or service. These warranties, including warranties prescribed by law, will run to Buyer, its successors and customers, project owners and to users of the Articles and shall run to and be enforceable by Buyer, Buyer's customer and/or project owner. Seller warrants and represents that it owns all right, title and interest in and to the Articles, or if not the owner, Seller has full authority to sell the Articles to Buyer on behalf of such owner. Seller further warrants that the Articles are free from any and all security interests, claims, demands, liens, or other encumbrances; and that all right, title, and interest in the Articles shall pass to Buyer on delivery. Seller shall, at its own cost, defend the title to the Articles, and remove all encumbrances thereon, or replace the Articles with similar items conforming to the foregoing warranties.
7. Warranty - Price. Unless otherwise specified on this Purchase Order, the prices charged to Buyer are FCA Seller’s plant. Any applicable federal, state and local taxes, charges or duties will be identified separately from the equipment cost and paid by Buyer unless Buyer provides Seller with tax exemption certificates acceptable to the appropriate taxing authorities. Seller warrants that the prices charged Buyer on this order are no higher than prices charged on orders placed by others for similar quantities on similar conditions subsequent to Seller’s last generally announced price change. If Seller breaches this warranty, the prices of the Articles will be reduced accordingly, retroactive to the date of such breach. Any price reduction in the Articles subsequent to placement of this Purchase Order, but prior to shipment, will apply to this Purchase Order.
8. Inspection; Rejection. Articles purchased hereunder are subject to inspection and approval at Buyer’s designated destination. Buyer reserves the right to reject and refuse acceptance of Articles that are not in accordance with Buyer’s instructions, specifications, drawings, and data or Seller’s warranties (express and implied). Articles not rejected within thirty (30) days will be deemed accepted. Rejected or refused Articles will be returned to Seller at Seller’s expense. Payment for any of the Articles ordered hereunder will not be deemed an acceptance thereof.
9. Conditions of Payment. Unless otherwise stated on this Purchase Order, the terms of payment will be as follows: Payment for accepted invoices shall be 30 days from date of invoice. Buyer reserves the right to return any invoice containing an error of any kind, and the right to not process or post until a new corrected invoice is delivered to Buyer. Further, Buyer shall have no obligation to pay for the Articles covered by this Purchase Order until delivery thereof at Seller's risk as specified herein and subject to Buyer's inspection and approval following said delivery unless otherwise specified herein.
10. Changes. Buyer may, at any time before shipment of the Articles, make changes in quantities, specifications, delivery schedules, and methods of shipping and packing. If such changes cause an increase or decrease in prices or in the time required for performance, Seller will notify Buyer thereof within 5 days of receipt of such change by Seller, and an equitable adjustment will be made. Changes will not be binding on Buyer unless evidenced by a written change order issued and signed by Buyer. .
11. Termination. In the event of termination of the Purchase Order by Buyer for any cause set forth in Article 10 above, Seller shall not be entitled to any damages or any further compensation under the Purchase Order and Buyer shall have no further obligation to Seller with respect to the Seller except that Buyer shall either (a) pay Seller the cost of Articles delivered by Seller to Buyer in good faith and substantially in accordance with this Purchase Order prior to Buyer's delivery of a termination notice under this Purchase Order, or (b) return the new unused and uninstalled Articles at Seller’s expense with no obligation to pay for same, in Buyer’s sole discretion. Subject to Seller’s reasonable termination charges, Buyer may terminate this Purchase Order at any time for its convenience, effective upon Seller’s receipt of written notice from Buyer. When Seller receives such notice, it will, to the extent specified therein, stop work and take any necessary action to protect the property in Seller’s possession in which Buyer has or may acquire an interest. Buyer’s sole and exclusive obligation to Seller upon termination for convenience shall be the payment of unpaid charges due and payable for Articles already delivered by Seller substantially in accordance with this Purchase Order up to the effective date of termination, and Seller’s reasonable termination charges. In no event shall Buyer be liable to Seller for any anticipated fees or profits on account of any termination under this Paragraph 11.
12. Compliance with Laws. Seller shall comply with all applicable federal, state and local laws, regulations and orders. This includes, without limitation, the requirement that Seller certify in writing that the Articles were produced in compliance with and meet all applicable requirements and standards of the Fair Labor Standards Act and the regulations and orders of the United States Department of Labor issued there under, the Occupational Health and Safety Act, the Toxic Substance Control Act and applicable affirmative action laws.
13. Assignment. Seller may not assign any of its rights, duties, or obligations under this Purchase Order without Buyer’s prior written consent. Such consent shall not be unreasonably withheld. Any attempted assignment without such consent, even if by operation of law, will be void. Any consent by Buyer to Seller’s subcontracting or assignment will not relieve Seller from its obligations, from any liability for breach, or from any duty to perform hereunder.
14. Notices. Any notice relating to this Purchase Order must be in writing. Notices hereunder shall be forwarded to the addressee’s address, or email address with confirmation receipt set forth hereon (as may be modified via such notice to the other party), and shall be effective upon documented receipt, or documented refusal thereof, only.
15. Excuse for Late Performance. In the event that Seller is delayed in the supply of Articles hereunder, the Seller waives any right to assert and/or claim damages including but not limited to those for delay or hindrance, against the Buyer; and in such instance, the Seller agrees that Seller's sole remedy shall be such extension of time to supply the Articles as the Buyer, in Buyer's sole discretion, determines is reasonably necessary. Seller shall be entitled to such extension of time only if Seller’s performance is delayed or rendered impossible as a direct result of fire or other casualty, riot, strike or other combined action of the workers, war, civil disturbance, epidemic, act of God, or Buyer’s active interference with Seller’s performance (and then only to the extent Buyer’s interference continues after Seller’s written notice of the interference), provided that such act or event (i) is beyond the reasonable control of Seller and not due to its fault or negligence, and (ii) could not have been prevented or avoided by Seller through the exercise of due diligence, including the expenditure of any reasonable sum. Written notice of delay must be given by Seller within 10 days of the cause or condition. In the event Seller is delayed, Buyer may, at its sole option, purchase the Articles itself from other sources and reduce its obligation to Seller hereunder by the quantities so purchased, without liability to Buyer. At Buyer’s request, Seller will provide adequate assurances that the delay will not exceed 10 days. If Seller fails to provide such assurances within 48 hours of Buyer’s request or fails to perform within the 10 day period, then Buyer may immediately cancel this Purchase Order without liability, except to pay Seller for such Articles that have been timely delivered in conformity with this Purchase Order.
16. No Identification after Breach. If Buyer wrongfully rejects or revokes acceptance of any Article, fails to make any payment due on or before delivery, or repudiates with respect to any Article covered by this Purchase Order, Seller will have no right to identify any Articles to the Purchase Order after it learns of the rejection, revocation, breach or repudiation. Buyer is not obligated to utilize the resources reserved by Seller, and shall not be liable for any costs or damages incurred by Seller as a result of reserving such capacity for Buyer. Buyer shall pay Seller for accepted invoices per agreed terms.
17. Applicable Law; Exclusive Forum. The validity, construction, and enforcement of this Purchase Order will be governed by and interpreted under the local, domestic law of the State of Texas, without reference to the conflict of law’s provisions thereof, including, without limitation, its provisions of the Uniform Commercial Code. Further, the parties hereto agree that the state courts located in Harris County, Texas, and the federal courts located in Houston, Texas having subject matter jurisdiction shall be the exclusive forums for any cause of action filed in any court of law or equity arising out of or in any way related to this Purchase Order. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
18. Confidentiality; Buyer’s Property. Seller agrees that any the terms of this Purchase Order, including price and quantities, and information that Buyer provides to Seller during the term of the Purchase Order, including, without limitation, any specifications, drawings, designs, manufacturing data, information concerning Buyer’s, its customers’, project owners’ or other third parties’ past, present or future research, marketing, development, operations or business activities, or trade secrets ("Confidential Information"), is proprietary, confidential and remains the property of Buyer, its customers, project owners or such third parties, as applicable, and Contractor shall keep such Confidential Information strictly confidential and shall not disclose it to any third party except its attorneys, accountants, auditors, manufacturers, tax advisors, and financial advisors, or use it directly or indirectly for any purpose except for the performance of the Purchase Order without the express written consent of Buyer. In no event without the written consent of Buyer shall Seller communicate with Buyer’s customer or project owner concerning such Confidential Information or any related product or material during the pendency of the project for which this Purchase Order is issued.
19. Waiver of Liens. To the fullest extent permitted by law, Seller agrees that neither Seller, any material supplier thereto, nor any employee, agent, representative thereof, shall file against Buyer, Buyer's customer, project owner and/or the property or real estate of each of them, any lien of any kind, including but not limited to, any laborers', mechanics' and/or material men's liens (collectively "Lien"). To the fullest extent permitted by law, Seller waives the right to file any such Lien. Further, Seller agrees to indemnify, defend, and hold harmless Buyer, Buyer's customer, project owner and the property and real estate of each of them, from and against the filing of any such Lien and any loss or damage resulting therefrom including costs, expenses and attorneys' fees. Cost or expense to Seller is limited to the Purchase Order cost of equipment.
20. Audit. Invoices hereunder shall be subject to audit by Buyer.
21. Enforceability; Reservation of Rights; Waiver; Setoff; Corrections. If any provision of this Purchase Order, or the application thereof, is deemed invalid or unenforceable to any extent, the remainder of this Purchase Order, including other applications thereof, shall not be affected thereby, and each provision of this Purchase Order shall be valid and enforceable to the fullest extent permitted by law. Buyer explicitly reserves its rights to all remedies available to it under applicable law. The waiver by Buyer of a breach by Seller of any term or condition hereunder will not be deemed a waiver of future compliance and such term or condition will remain in full force and effect. Buyer and Seller’s clerical and stenographic errors are subject to correction.
22. Limitation of Liability. Notwithstanding anything in this Purchase Order to the contrary, neither party shall be liable to the other for any indirect, special, incidental, punitive, exemplary or consequential damages, whether based in contract, tort, warranty, strict liability or otherwise, including, but not limited to damages for lost production, lost revenue, lost product, lost profits, lost business or loss of use whether or not such damages were foreseeable or either party was advised of the possibilities of such damages; except to the extent of such party’s (including parties under its control) willful misconduct, gross negligence, and/or breach of confidentiality provisions, and indemnity obligations hereunder for third party claims.