1. Definitions. “Customer” means the person, firm, company, or other entity to whom Goods and/or Services are supplied or provided under these Terms and Conditions. “Representative” means officers, directors, employees, other contractors, subcontractors, agents, or invitees (as the case may be) of Energy Pipe, LLC (“Energy Pipe”) or Customer. “Personnel” means officers, directors, employees, agents, or invitees (as the case may be) of Energy Pipe or Customer. “Goods” means goods, materials, supplies, and/or products provided by Energy Pipe to or for the benefit of Customer and/or used by Energy Pipe in connection with Services. “Services” means the services provided by Energy Pipe under the instruction of Customer (including provision of goods) and to or for benefit of Customer. In this agreement, Energy Pipe offers Goods and/or Services provided by Energy Pipe under the instruction of Customer under the following General Terms and Conditions.
  2. Application. These Terms and Conditions apply to all Goods and/or Services and shall apply in place of and prevail over any terms or conditions contained or referred to in Customer’s order, in correspondence, catalogs, circulars or other material used by Energy Pipe for general information purposes, or implied by trade custom, practice, or course of dealing, unless specifically agreed to in writing by an officer or other authorized representative of Energy Pipe. Any purported provisions to the contrary are hereby excluded or extinguished.
  3. Acceptance of General Terms and Conditions. Energy Pipe’s prices are determined on the basis of the limited liability set out in these Terms and Conditions and Customer’s assumption of and release and indemnification of Energy Pipe from certain liabilities as set out in this Agreement. Prior to acceptance of Customer’s order by Energy Pipe, Customer may, by written notice to Energy Pipe, request Energy Pipe to amend a provision of this Agreement. Any acceptance by Energy Pipe of revised terms may be dependent on the availability of appropriate insurance coverage and may require Energy Pipe to charge higher prices commensurate with the added costs involved, the attendant risks and potential deterioration of Energy Pipe’s loss experience to which Energy Pipe would be exposed.
  4. Payment. The price payable for Goods and Services shall be those contained in a specific estimate prepared in authorized form by an authorized representative of Energy Pipe. Due to market fluctuations over which Energy Pipe has no control, prices are subject to change without prior written notice. All pertinent charges for freight, transportation, shipping, storage, handling, insurance, demurrage or similar charges shall be wholly borne by Customer unless otherwise agreed to in writing by both parties.
  5. Terms of Payment. Invoices shall be paid in full within thirty (30) days of the date of the invoice unless otherwise agreed to in writing. Starting on the due date of the payment, a late charge of 2% per month (24% annual rate) will be assessed against the entire past due balance. In the event that the charge exceeds the maximum permitted by law, it shall be reduced to the legal maximum. If unpaid amounts are collected through legal proceedings or by a collection agency, Customer shall also pay Energy Pipe’s collection costs and fees. Customer shall have no right of set-off or withholding against any amounts owing to Energy Pipe as a result of other service order claim or dispute between Energy Pipe and Customer. In the event a collection action is brought by Energy Pipe, Energy Pipe shall be entitled to reasonable attorney fees and all costs. If Customer is delinquent in the payment for Goods and/or Services, Energy Pipe reserves the right to revoke any credit extended to Customer. Energy Pipe shall have the right to demand payment before making further shipment of Goods or providing any additional Goods or Services to Customer.
  6. Taxes and Customs Duties. Unless otherwise specified, all taxes (other than income taxes), levies, charges, and duties, including government and local authority charges or charges levied by similar entities, shall be paid by Customer and added to the price or will be billed separately to Customer. Energy Pipe will accept a valid tax exempt certificate from Customer, if applicable; however, if for any reason an exemption certificate is not accepted by the governmental taxing authority involved and Energy Pipe is required to pay the tax covered by such exemption certificate, Customer agrees to promptly reimburse Energy Pipe for the tax paid. All import permits and licenses and the payment of any other import duties and customs fees of the United States or other countries shall be the sole responsibility of Customer unless otherwise agreed to in writing by both parties.
  7. Warranties and Liabilities. Storage compound shall be applied to the connections of the pipes when in storage, Energy Pipe, LLC., does not warranty the connections of the pipes from rusting. Fracking jobs and or pulling on pipes cemented or not and or applying internal or external pressures on pipe are performed at the customer risk, Energy Pipe, nor the manufacturer or pipe dealer warranties the pipe. All conditions, warranties, or representations, either express (advertisement, catalog, or other Energy Pipe publication or otherwise) or implied (by statute or otherwise), relating to the accuracy, merchantability, fitness for a particular purpose or otherwise in relation to the provision of Goods and/or Services hereunder are disclaimed and excluded. The Goods and/or Services are provided on AS IS basis and Energy Pipe disclaims any and all implied warranties with respect to the Goods and/or Services. Except as expressly provided in Article 9, the liability of Energy Pipe, however arising from, or in connection with, this Agreement (whether for breach of contract, negligence, misrepresentation or otherwise), shall at no time exceed the full value of the consideration paid or payable by Customer under this Agreement prior to the date upon which the cause of such action arose. Any claim brought under this Article 7 must be brought within six (6) months of the completion of service and/or sale and/or delivery of goods. Energy Pipe may, at Energy Pipe’s option, replace, repair or refund any defective goods provided Customer gives Energy Pipe thirty (30) days’ prior written notice of any defective goods, and provided, Customer has not altered, misused or unreasonably used said goods.
  8. Indemnity and Hold Harmless.
    1. Customer shall be liable and shall indemnify and hold harmless Energy Pipe its affiliates, agents and its or their employees and/or officers from claims, losses, damages, costs, expenses and liabilities in any way relating to any Goods or Services provided under this Agreement in respect to (i) personal injury, death and disease of employees and/or officers of Customer or its affiliates or agents; and (ii) loss of or damage to property belonging to Customer or its affiliates, its agents and its or their employees and/or officers, arising from whatever cause, irrespective of any negligence and/or breach of duty, statutory or otherwise, of the person or entity to be indemnified.
    2. Energy Pipe shall be liable and shall indemnify and hold harmless Customer, its affiliates, agents and its or their employees and/or officers from claims, losses, damages, costs, expenses and liabilities in any way relating to any Goods or Services provided under this Agreement in respect to (i) personal injury, death and disease of employees and/or officers of Energy Pipe or its affiliates or agents; and (ii) loss of or damage to property belonging to Energy Pipe or its affiliates, its agents and its or their employees and/or officers; arising from whatever cause, irrespective of any negligence and/or breach of duty, statutory or otherwise, of the person or entity to be indemnified.
    3. Application. The indemnity provisions contained in this Article 8 shall not apply to claims or causes of action asserted against the indemnifying party solely by reason of any agreement of indemnity between the indemnified party and any other person or entity.
    4. Interpretation. Where one party (the first party) agrees to Indemnify the other party, the term “Indemnify” shall mean that the first party agrees to indemnify and hold the other party and its and their Representatives harmless from and against any and all loss, liability, costs, claims, demands, and expenses (including legal expenses) of every kind and character, without regard to the cause thereof, and whether or not involving negligence, strict liability or other fault of the other party, Personnel, or its or their Representatives, including, but not limited to the sole, concurrent, active of passive negligence, or the unseaworthiness of any vessel, or the defect, failure, or ruin of any Goods or property.
    5. Consequential Loss. Notwithstanding any other provision contained herein, neither party shall be liable to the other for special, indirect, or consequential damages resulting from or arising out of this contract including, without limitation, punitive damages, loss of profit, loss of use, loss of contract, loss of production, loss of revenue, business interruption, or increased cost of working, however same may be caused.
  9. Title and Risk of Loss. Unless otherwise agreed to in writing by the parties, full risk of loss (including transportation delays and losses) shall pass to Customer upon delivery of goods sold or rented hereunder to the designated F.O.B. point, regardless of whether or not Energy Pipe pays freight. However, in case of Goods sold hereunder, Energy Pipe retains title, for security purposes only, to all Goods until paid for in full, and Energy Pipe may, at its option, repossess the same upon Customer’s default in payment hereunder and charge Customer for any deficiency.
  10. Return Policy. Energy Pipe shall charge a 25% restocking and processing fee on all returns of standard product lines. Energy Pipe shall charge a 35% restocking and processing fee on all returns of custom product lines. Energy Pipe reserves the right to refuse returns of other special product lines and/or orders at its sole discretion. No returns after 30 days from the date of invoice will be allowed.
  11. Arbitration. Any and all disputes that may be settled through arbitration prior to resorting to court proceedings and/or and litigation may be considered. The arbitration and the arbitrator shall be approved by both sides, and his decision may be final. If both parties do not agree on the arbitrator’s decision, then the American Arbitration Association may appoint another arbitrator. All arbitration must take place in the State of Louisiana, City and Parish of Lafayette, U.S.A.
  12. Force Majeure. Except for Customer’s obligation to pay money, neither party shall be responsible for failure or delay in performance hereunder if such failure or delay is caused by acts of God, strikes, lockouts, wars, insurrections, earthquakes, storms, fires, arrests, restraint by any government, civil disturbances, orders, laws, or proclamations of government authorities and any other causes whether of the kind enumerated herein or otherwise which are not reasonably within the control of the party claiming suspension.
  13. Confidentiality. Proprietary or confidential information disclosed by Customer to Energy Pipe and by Energy Pipe to Customer is always held in strict confidence and will not, except as required by law or legal process, be disclosed by Customer or Energy Pipe to any third party without authorization from the other party, so long as such information is not in the public domain.
  14. Proprietary Rights. Energy Pipe retains for itself and its affiliates all proprietary rights, such as and without limitation, patents, trade secrets and copyrights, in and to all engineering designs, construction details, performance or application data, for all Goods sold or otherwise provided by Energy Pipe, or Services rendered by Energy Pipe.
  15. Assignment. Energy Pipe may assign, license, or subcontract any of its rights and obligations under this Agreement upon written notice to Customer. Customer may not assign or in any way dispose of its rights or obligations under this Agreement without the prior written consent of Energy Pipe.
  16. Termination. Energy Pipe may, without prejudice to any of its other rights, terminate this Agreement with immediate effect by notice in writing to Customer if Customer becomes insolvent, makes a general assignment for the benefit of its creditors, applies for or consents to the appointment of a receiver, trustee, or liquidation of all or substantially all of its assets, has an involuntary petition in bankruptcy filed against it which is not dismissed within forty-five (45) days or fails to pay its debts and obligations as they become due or commits any breach of this or any contract between Energy Pipe and Customer, or if Energy Pipe reasonably apprehends that any of the above events may occur. In the event of termination of this Agreement, however arising, Customer shall promptly return to Energy Pipe all Goods to which Energy Pipe has title and which are in Customer’s possession or under its control. Any termination of the Agreement shall be without prejudice to the accrued rights of the parties on the date of such termination, and the continuation in force of all provisions of this Agreement intended to survive such termination.
  17. Severability. Any provision or term of this Agreement which is or may be void or unenforceable shall, to the extent of such invalidity or unenforceability, be deemed severable and shall not affect any other provision of this Agreement.
  18. Waiver. Failure of Energy Pipe to exercise or enforce any rights under this Agreement shall not be deemed to be a waiver of any such rights nor operate so as to bar the exercise or enforcement of such rights at any later time or times.
  19. Storage/Default/Energy Pipe’s Lien. Energy Pipe shall have a lien on all property stored by Customer at Energy Pipe. If Customer fails to pay any money owed to Energy Pipe or fails to fulfill any of the covenants or agreements specified to be fulfilled by Customer, Customer will be considered in default, and Energy Pipe may take any action it deemed necessary to recover any losses due to Energy Pipe.
  20. Insurance. All property stored by Customer at Energy Pipe is stored at Customer’s sole risk. Insurance is Customer’s sole responsibility.
  21. Governing Law & Jurisdiction. The construction, jurisdiction, application and interpretation of any of the terms and conditions herein contained shall be governed and construed in accordance with Louisiana law without regard to applicable conflicts of law principles. Both parties consent to the jurisdiction of the courts in the State of Louisiana in the event of any actions, claims, or litigation arising out of or in any way connected with this Agreement. Both parties agree that the exclusive jurisdiction and the proper venue for any such actions, claims, or litigation brought hereunder will be the courts of the State of Louisiana or the federal courts sitting in Lafayette Parish, State of Louisiana, U.S.A.
  22. Construction. All headings are for ease of reference only and shall not affect the construction of this Agreement. References to the singular shall include the plural and vice versa.
  23. Any notice provided for hereunder shall be given to Energy Pipe at: Energy Pipe, P.O. Box 52523, Lafayette, LA 70505, U.S.A.
  24. Entire Agreement. This agreement constitutes the entire understanding between the parties with respect to its subject matter and supersedes all prior agreements, negotiations, and discussions between the parties in relation to its contents.
  25. Presumption. There is no presumption against Energy Pipe on the basis that Energy Pipe is responsible for preparing this Agreement or any part of it.
  26. All prices are subject to modification due to changes in information provided by Customer or changes in circumstances or job requirements.