PLEASE READ THESE WEB SITE TERMS OF USE CAREFULLY BEFORE USING THIS WEB SITE (THE “WEB SITE”). THESE WEB SITE TERMS OF USE (THE “TERMS OF USE”) GOVERN YOUR ACCESS TO AND USE OF THE WEB SITE. THE WEB SITE IS AVAILABLE FOR YOUR USE ONLY ON THE CONDITION THAT YOU AGREE TO THE TERMS OF USE SET FORTH BELOW. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF USE, DO NOT ACCESS OR USE THE WEB SITE. BY ACCESSING OR USING THE WEB SITE, YOU AND THE ENTITY YOU ARE AUTHORIZED TO REPRESENT (“YOU” OR “YOUR”) SIGNIFY YOUR AGREEMENT TO BE BOUND BY THE TERMS OF USE.
1. Scope of Terms of Use
These Terms of Use govern Your use of the Web Site and all applications, software and services (collectively, “Services”) available via the Web Site, except to the extent such Services are the subject of a separate agreement.
2. Modifications
Texas Energy Lab may revise and update these Terms of Use at any time. Your continued usage of the Web Site after any changes to these Terms of Use will mean You accept those changes. Any aspect of the Web Site may be changed, supplemented, deleted, or updated without notice at the sole discretion of Texas Energy Lab. Texas Energy Lab may also change or impose fees for products and services provided through the Web Site at any time in its sole discretion. Texas Energy Lab may establish or change, at any time, general practices and limits concerning other Texas Energy Lab products and services in its sole discretion.
3. License and Ownership
Any and all intellectual property rights (“Intellectual Property”) associated with the Web Site and its contents (the “Content”) are the sole property of Texas Energy Lab, its affiliates or third parties. The Content is protected by copyright and other laws in both the United States and other countries. Elements of the Web Site are also protected by trade dress, trade secret, unfair competition, and other laws and may not be copied or imitated in whole or in part. All custom graphics, icons, and other items that appear on the Web Site are trademarks, service marks or trade dress (“Marks”) of Texas Energy Lab, its affiliates or other entities that have granted Texas Energy Lab the right and license to use such Marks and may not be used or interfered with in any manager without the express written consent of Texas Energy Lab. Except as otherwise expressly authorized by these Terms of Use, You may not copy, reproduce, modify, lease, loan, sell, create derivative works from, upload, transmit, or distribute the Intellectual Property of the Web Site in any way without Texas Energy Lab’s or the appropriate third party’s prior written permission. Except as expressly provided herein, Texas Energy Lab does not grant to You any express or implied rights to Texas Energy Lab’s or any third party’s Intellectual Property.
Texas Energy Lab grants You a limited, personal, nontransferable, nonsublicensable, revocable license to access and use only the Web Site, Content and Services only in the manner present by Texas Energy Lab only in the manner expressly permitted by Texas Energy Lab. Except for this limited license, Texas Energy Lab does not convey any interest in or to the Content, Services, Web Site or any other Texas Energy Lab property by permitting You to access the Web Site. Except to the extent required by law or as expressly provided herein, none of the Content may be reverse-engineered, modified, reproduced, republished, translated into any language or computer language, re-transmitted in any form or by any means, resold or redistributed without the prior written consent of Texas Energy Lab. You may not make, sell, offer for sale, modify, reproduce, display, publicly perform, import, distribute, retransmit or otherwise use the Content in any way, unless expressly permitted to do so by Bluewtater.
4. Restrictions on Use of the Web Site
In addition to other restrictions set forth in these Terms of Use, You agree that:
(a) You shall not disguise the origin of information transmitted through the Web Site or place false or misleading information on the Web Site.
(b) You will not use or access any service, information, application or software available via the Web Site in a manner not expressly permitted by Texas Energy Lab.
(c ) You will not input or upload to the Web Site any information which contains viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, the Web Site or Information or that infringes the Intellectual Property (defined below) rights of another.
(d) Certain areas of the Web Site may be restricted to customers of Texas Energy Lab.
(e) You may not use or access the Web Site or Services in any way that, in Texas Energy Lab’s judgment, adversely affects the performance or function of the Services or the Web Site or interferes with the ability of authorized parties to access the Services or the Web Site.
(f) You may not frame or utilize framing techniques to enclose any portion or aspect of the Content or the Information, without the express written consent of Texas Energy Lab.
5. Links
(a) Outbound Links. The Web Site may contain links to third-party Web Sites and resources (collectively, “Linked Sites”). These Linked Sites are provided solely as a convenience to You and not as an endorsement by Texas Energy Lab of the content on such Linked Sites. Texas Energy Lab makes no representations or warranties regarding the correctness, accuracy, performance or quality of any content, software, service or application found at any Linked Site. Texas Energy Lab is not responsible for the availability of the Linked Sites or the content or activities of such sites. If You decide to access Linked Sites, You do so at Your own risk. In addition, Your use of Linked Sites is subject to any applicable policies and terms and conditions of use, including but not limited to, the Linked Site’s privacy policy.
(b) Inbound Links. Linking to any page of the Web Site other than to http://www.texasenergylab.com through a plain text link is strictly prohibited in the absence of a separate linking agreement with Texas Energy Lab. Any web site or other device that links to http://www.texasenergylab.com or any page available therein is prohibited from (a) replicating Content, (b) using a browser or border environment around the Content, (c )implying in any fashion that Texas Energy Lab or any of its affiliates are endorsing it or its products, (d) misrepresenting any state of facts, including its relationship with Texas Energy Lab or any of its affiliates, (e) presenting false information about Texas Energy Lab products or services, and (f) using any logo or mark of Texas Energy Lab or any of its affiliates without express written permission from Texas Energy Lab.
6. Submissions
You agree that Texas Energy Lab, in its sole discretion, may terminate or suspend Your use of the Web Site, the Services and Content at any time and for any or no reason in its sole discretion, even if access and use continues to be allowed to others. Upon such suspension or termination, You must immediately (a) discontinue use of the Web Site, and (b) destroy any copies You have made of any portion of the Content. Accessing the Web Site or Services after such termination, suspension or discontinuation shall constitude an act of trespass. Further, You agree that Texas Energy Lab shall not be liable to You or any third party for any termination or suspension of Your access to the Web Site and/or the Services.
DISCLAIMER OF WARRANTIES
TEXAS ENERGY LAB MAKES NO REPRESENTATIONS ABOUT THE RESULTS TO BE OBTAINED FROM USING THE WEB SITE OR THE CONTENT. THE USE OF SAME IS AT YOUR OWN RISK.
THE WEB SITE, THE SERVICES AND THE CONTENT ARE PROVIDED ON AN “AS IS” BASIS. TEXAS ENERGY LAB, ITS LICENSORS, AND ITS SUPPLIERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. TEXAS ENERGY LAB AND ITS AFFILIATES, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, SECURITY OR TIMELINESS OF THE CONTENT OR SERVICES PROVIDED ON OR THROUGH THE USE OF THE WEB SITE. NO INFORMATION OBTAINED BY YOU FROM THE WEB SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED BY TEXAS ENERGY LAB IN THESE TERMS OF USE.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY, SO THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU. IF YOU ARE DEALING AS A CONSUMER, YOUR STATUTORY RIGHTS THAT CANNOT BE WAIVED, IF ANY, ARE NOT AFFECTED BY THESE PROVISIONS. YOU AGREE AND ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND WARRANTY PROVIDED IN THESE TERMS OF TUSE ARE FAIR AND REASONABLE.
9. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT TEXAS ENERGY LAB IS OTHERWISE FOUND RESPONSIBLE FOR ANY DAMAGES, TEXAS ENERGY LAB IS RESPONSIBLE FOR ACTUAL DAMAGES ONLY TO THE EXTENT PERMISSION BY LAW, IN NO EVENT SHALL TEXAS ENERGY LAB, ITS AFFILIATES, ITS LICENSORS, ITS SUPPLIERS, OR ANY THIRD PARTIES MENTIONED AT THE WEB SITE BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USER OF OR INABILITY TO USE THE WEB SITE, THE SERVICES OR THE CONTENT WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLECT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TEXAS ENERGY LAB IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE REMEDIES STATED FOR YOU IN THESE TERMS ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THESE TERMS OF USE.
10. Compliance with Law
You agree to use the Web Site in strict compliance with all applicable laws, rulings and regulations and in a fashion that does not, in the sole judgment of Texas Energy Lab, negatively reflect on the goodwill or reputation of Texas Energy Lab and shall take no action which would cause Texas Energy Lab to be in violation of any laws, rulings or regulations applicable to Texas Energy Lab.
11. Governing Law
These Terms and Conditions are to be governed by and construed in accordionce with the law of the State of New York without reference to its conflicts of law rules. You agree that any action at law or in equity arising out of or relating to these terms shall be filed only in the state or federal courts located in the New York County in the State of New York.
12. General
You may not assign these Terms of Use or any of Your interests, rights or obligations under these Terms of Use. If any provision of these Terms of Use is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any of these Terms of Use shall be deemed a further or continuing waiver of such term or condition or any other term or condition.
13. COMPLETE AGREEMENT
EXCEPT AS EXPRESSLY PROVIDED IN A SEPARATE LICENSE OR OTHER WRITTEN AGREEMENT BETWEEN YOU AND TEXAS ENERGY LAB, THESE TERMS OF USE CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU AND TEXAS ENERGY LAB WITH RESPECT TO THE USE OF THE WEB SITE, AND ANY SOFTWARE OR SERVICE, INFORMATION OR CONTENT CONTAINED THEREIN, AND SUPERSEDE ALL DISCUSSIONS, COMMUNICATIONS, CONVERSATIONS, AND AGREEMENTS CONCERNING THE SUBJECT MATTER HEREOF.
Standard Terms and Conditions of Sale (“Terms and Conditions”)
Definitions
“Services” means the thermal processing and/or other services performed by Texas Energy Labs (“TEL”) to the customer ordering or requesting such Services (the “Customer”). “Goods” means any products of Customer upon which TEL has performed or will perform the Services in accordance with the terms of an Order. An “Order” means any oral or written request or order for Services, including any formal purchase order submitted by a Customer.
Order Number, Invoicing
TEL shall issue an order number upon acceptance of an Order, and such number must appear on all invoices, packages, shipping documents or any other documents pertaining to Goods upon which Services are to be performed. Customer shall notify TEL immediately if Customer is unable to meet any of the requirements set forth in the Order, including delivery terms. Each accepted Order shall be invoiced separately, and Customer shall pay for each shipment as invoiced in accordance with Section 6 below.
Delivery, Shipping and Risk of Loss.
(a) All specified delivery dates are estimated, and such delivery of Goods by TEL is contingent upon prompt receipt by TEL of (i) the Order, (ii) complete and detailed current specifications (including any prints or drawings) satisfactory for production of the Order, (iii) the Goods upon which the Services are to be performed, (iv) all other information necessary to permit TEL to proceed with work immediately and without interruption, and (v) satisfactory assurance of compliance with the agreed terms of payment.(b) Unless TEL has quoted pricing and terms for delivery, pick-up and trucking, all Goods are shipped F.O.B. TEL’s location. Risk of loss of any Goods in transit shall pass upon delivery to the F.O.B. point. The party undertaking risk of loss is solely responsible for all shipping and delivery charges and shall maintain adequate insurance with reputable carriers covering the replacement value of such Goods in transit.
Inspection.
Customer shall inspect any and all Goods processed by TEL promptly upon receipt thereof and shall promptly notify TEL of any objections to the Goods or the Services performed by TEL not later than three (3) working days after Customer’s receipt of such Goods. If Customer does not notify TEL of its objection within such time period, or Customer refuses to inspect or otherwise fails to inspect the Goods upon receipt, Customer shall be deemed to have accepted the Goods and the Services as conforming to specification and otherwise meeting the requirements of the applicable Order.
Changes; Cancellations.
(a) No order accepted by TEL may be changed or cancelled by Customer (in whole or in part) unless TEL agrees to such change or cancellation in writing or such cancellation is due to breach by TEL. Accepted changes to an Order may result in a delay in the scheduled delivery date and/or a change in price. Any change in price or delivery will be as agreed to by Customer and TEL.(b) Upon any cancellation (in whole or in part) including any cancellation for breach, Customer shall pay all costs and expenses (including overhead and administrative expenses) incurred by TEL on the Order up to the effective date of cancellation.
Pricing; Payment.
Prices are as quoted by TEL and are subject to change upon notice to Customer. Payment terms are net thirty (30) days following the date of invoice unless otherwise agreed by the parties. A service charge of 1.5% per month will be charged on past due invoices. If Customer’s account remains past due for more than sixty (60) days following the date of invoice such past due account shall be subject to collection. Accounts subject to collection will be referred to an attorney and Customer agrees to pay all costs and expenses of such collection, including reasonable attorney’s fees, in connection with such collection. TEL reserves the right, without any liability whatsoever to Customer or any other person or entity, to suspend performance, refuse to accept additional releases or orders, stop delivery of Goods in transit, decline to deliver except for cash, require payment prior to shipment, and/or restrict or modify payment terms whenever Customer’s account is delinquent or if, in TEL’s sole discretion, TEL has reason to doubt Customer’s solvency, financial condition or ability to pay.
Force Majeure.
TEL will not be liable for its failure to perform hereunder due to any cause or event beyond its reasonable control, including without limitation, acts of God, acts of terrorism, fire, flood, inability to obtain material at reasonable prices, volatility of utility costs, equipment or transportation, governmental laws or regulation, accidents, labor disputes, strikes, lockouts or shortages, or other similar matters. In the event of a force majeure event, TEL will notify Customer and will attempt to minimize the duration of any impact on its ability to perform under an Order due to such force majeure event.
Warranty, Liability, Indemnification.
Customer shall defend, indemnify and hold TEL harmless from any and all third party claims brought against TEL relating in any way to the manufacturing, sale, processing, distribution or use of the Goods or the performance of the Services if the Goods have been subjected to previous or further processing, assembly or work following performance of the Services by TEL.
Miscellaneous.
(a) Governing Law; Venue. This contract has been made in, and will be construed and enforced in accordance with the laws of, the State of New York without regard to its principles of conflicts of laws. Customer and TEL consent to the exclusive jurisdiction of the state and federal courts sitting in New York County, New York for any actions, suits or other proceedings arising out of, or related to, the enforcement of either party’s rights hereunder. TEL and Customer agree not to commence any action suit or proceeding in any other court and hereby irrevocably and unconditionally waive any objection to the laying of venue in any such court. The Uniform Commercial Code expressly does not apply to any Order, Offer to Sell or any Services sold hereunder.
(b) Additional Agreed Terms, Entire Agreement, Acceptance, Modification. Any additional, Order-specific terms (“Additional Terms”) shall be agreed between TEL and Customer and shall be set forth upon the applicable Order documentation. To the extent such Additional Terms conflict with the Terms and Conditions, the Additional Terms shall control. Unless otherwise agreed to in writing by TEL, the Terms and Conditions (including, if applicable, any Additional Terms) and the terms of any of TEL’s standard forms executed in connection with a particular Order constitute TEL’s entire offer to sell the Services to the Customer (“Offer to Sell”), constitute the entire agreement between TEL and the Customer with respect to the subject matter thereof, and supersede all prior or contemporaneous communications and agreements. The Terms and Conditions (including, if applicable, any Additional Terms) shall apply to all Orders received from Customer. Customer’s acceptance of TEL’s Offer to Sell and TEL’s performance of the Order (in whole or in part) are expressly limited to, and conditioned upon, Customer’s acceptance of the Offer to Sell, which may not be changed or waived except in a writing signed by both parties. Without limitation on the foregoing, TEL’s performance of an Order shall not be considered acceptance of any counter-offer or terms provided by Customer and TEL will not be bound by, hereby objects to, and rejects, any additional provision or any provision at variance with these Terms and Conditions or any other part of TEL’s Offer to Sell that may appear in Customer’s purchase order, standard terms and conditions, acknowledgments, form agreements, notices or in any other document or communication from Customer to TEL, or any updates or amendments thereto. These Terms and Conditions may only be modified by a writing signed by the President and Chief Executive Officer or Chief Operating Officer of TEL.
(c) Survival. The provisions of Sections 7 and 8 and this Section 9 will survive the expiration or termination of this contract.
(d) Severability. In case any one or more of the provisions or parts of a provision contained herein are, for any reason, held to be invalid or illegal, such invalidity, illegality or unenforceability will not affect any other provision or part of a provision hereof, but these Terms and Conditions (including, if applicable, any Additional Terms) will be reformed and construed as if such invalid or illegal or unenforceable provision or part of a provision had never been contained herein and such provision or part will be reformed so that it is valid, legal and enforceable while retaining, to the maximum extent permitted, as much as possible of the original intent of the provision.
(e) Independent Contractors. Customer and TEL are independent contracting parties and nothing in the Order or TEL’s Offer to Sell shall make either party the employee, partner, joint venturer, agent or legal representative of the other for any purpose. Neither the Order, nor the Offer to Sell, grants either party any authority to assume or to create any obligation on behalf of or in the name of the other. Each party understands that the other manufactures products or performs services for sale to a wide variety of customers and that nothing in these Terms and Conditions (including, if applicable, any Additional Terms) precludes either party from selling its products to customers or competitors of the other.