ADDENDUM TO MASTER GOODS AND SERVICES AGREEMENT
STANDARD TERMS AGREEMENT
This Standard Terms Agreement (this “Agreement”) is by and between CARBO Ceramics Inc. (“CARBO”) to the extent a sale involves a CARBO product, Asset Guard Products Inc. (“ASSETGUARD”) to the extent a sale involves an ASSETGUARD product, and/or StrataGen, Inc. (“STRATAGEN”) to the extent a sale involves a license to a FRACPRO or STIMPRO software program, each a Delaware corporation (together referred to as “CARBO Group”), and the party designated below as “Customer.” CARBO Group and Customer are referred to collectively herein as the “Parties” and individually as a “Party.” Customer’s signatory to this Agreement represents that it has the necessary authority to execute this Agreement on behalf of the Customer and bind Customer hereto.
1. Entire Agreement. This Agreement, together with any software licenses, constitutes the entire agreement between the Parties and supersedes all prior negotiations, discussions, or agreements, whether written or oral, and all other terms, whether express or implied by law, regarding the subject matter hereof. No modification of the Agreement shall have any force or effect unless in writing and signed by an authorized signatory of each of the Parties. Failure to enforce any or all of the Agreement shall not constitute a waiver or preclude subsequent enforcement thereof. In the event of any conflict, inconsistency, or ambiguity between this Agreement and any other documents, whether signed or provided by Customer or otherwise, this Agreement shall control. Should any clause, sentence, or part of the Agreement be held invalid, such holding shall not invalidate the remainder hereof.
2. Certain Definitions.
(a) “Claim” means any claim, demand, complaint, cause of action of any kind whatsoever, loss, fine, penalty, citation, damage, suit, judgment, order, expense, or cost, including without limitation court costs and reasonable attorneys’ fees.
(b) “CARBO Group” means CARBO, ASSETGUARD, and STRATAGEN, their subsidiary, and affiliated companies, and their contractors (of whatever tier), and its and their respective directors, officers, employees, agents, and representatives.
3. Payment. The specific terms of payment are as specified in writing by CARBO Group. If the Customer shall fail to make any payments in accordance with the terms and provisions hereof, CARBO Group, in addition to its other rights and remedies, but not in limitation thereof, may, at its option, defer shipments or deliveries hereunder, or under any other contract with the Customer, except upon receipt of satisfactory security or of cash before shipment.
4. Indemnity. Customer agrees to release, defend, indemnify, and hold harmless CARBO Group from and against any and all Claims arising in connection herewith that are brought by or on behalf of Customer and/or any third party on account of bodily injury, illness, death, or damage to property except to the extent of CARBO Group’s negligence. Additionally, notwithstanding anything to the contrary in this Agreement, Customer agrees to release, defend, indemnify, and hold CARBO Group harmless from and against any and all Claims (specifically including Claims for damages related to combustion, pollution or contamination) arising from or attributable to substances contained in or that leak or are otherwise discharged from or into any liner, vessel, containment, or pipeline and any appurtenances thereto, or other product supplied by CARBO Group except to the extent of CARBO Group’s negligence.
5. Limitation of Liability. Regardless of the legal or equitable basis of any claim, in no event shall any member of CARBO Group be liable to Customer (or anyone claiming by, through, or under Customer), and in no event shall Customer be liable to any member of CARBO Group (or anyone claiming by, through, or under CARBO Group), for any form of damages other than direct damages, including, without limitation, special, indirect, incidental, consequential, exemplary or punitive damages arising out of or relating to the Agreement. Customer agrees that CARBO Group’s total aggregate liability arising out of or related to the Agreement shall not exceed the total amount paid by Customer to CARBO Group for the product or service that gave rise to the Claim. Customer hereby releases CARBO Group from all obligations, liability, claims, or demands in excess of this limitation. The Parties acknowledge that each of them relied upon the inclusion of this limitation in consideration of entering into the Agreement, and this limitation shall survive expiration or termination of this Agreement. To the extent that any limitation set forth herein is deemed to constitute liquidated damages, the Parties agree that such damages are difficult to determine and that such payment is intended to be a reasonable approximation of the amount of such damages.
6. Limited Warranties.
A. To the extent the relevant sale involves a CARBO product (or good), CARBO warrants that the goods manufactured by CARBO when shipped are free from defects in materials and workmanship, provided, however, CARBO shall have no obligation or liability under this warranty unless it shall have received prompt written notice specifying such defect no later than one (1) year from the date of shipment. In the event of defects developing within that period under normal and proper use, Customer agrees that its sole and exclusive remedy shall require only that CARBO, at its option, repair, modify or replace the non-conforming goods f.o.b. CARBO's plant or accept the return of the non-conforming goods and refund the purchase price or part thereof, giving effect to the use or value received by Customer. No goods shall be returned to CARBO without CARBO's prior written consent. In no event will CARBO be liable for any damages, including consequential damages, resulting from the use of the product. THE WARRANTY SPECIFIED IN THIS PARAGRAPH IS THE SOLE AND EXCLUSIVE WARRANTY RELATING TO CARBO PRODUCTS AND IS IN SUBSTITUTION FOR AND IN LIEU OF ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTY ARISING FROM COURSE OF DEALING, PERFORMANCE OR USAGE OF TRADE.
B. To the extent the relevant sale involves an ASSETGUARD product, ASSETGUARD warrants that its (i) tank bases (“TANKGUARD”), (ii) equipment bases (“EQUIPMENTGUARD”), (iii) polyurea composite liner (“GROUNDGUARD”), (iv) multi-purpose catch basins (“WASTEGUARD”) and/or (v) equipment pads (“MOBILEGUARD”) (collectively, the “Products”) will be free from defects in workmanship and materials as set forth below under normal and proper installation, use, maintenance, inspection, and operation for a period of eighteen (18) months for its TANKGUARD and GROUNDGUARD products, and for a period of three (3) months for its EQUIPMENTGUARD, WASTEGUARD and MOBILEGUARD products. In the event of a defect or malfunction of the Product not otherwise excluded from this Limited Warranty, Asset Guard will remedy the defect or malfunction, without charge to the original purchaser of the Product (“Customer”), for a period of eighteen (18) months after purchase for its TANKGUARD and GROUNDGUARD products, and for a period of three (3) months after purchase for its EQUIPMENTGUARD, WASTEGUARD and MOBILEGUARD products. The sole remedy will consist of repair or replacement of the Product, or refund of the purchase price, at ASSETGUARD’s sole option.
(1) Scope. This Limited Warranty covers the Products described herein and each of its component parts only, and does not cover products, materials, or services manufactured or provided by any other party.
(2) Performance. To obtain performance of any obligation under this Limited Warranty, Customer must notify ASSETGUARD in writing at: Asset Guard Products Inc., 575 North Dairy Ashford Rd., Suite 300, Houston, Texas 77079. Asset Guard and its designated agents are the only persons authorized to perform warranty obligations. To obtain information on warranty performance, contact ASSETGUARD at the preceding address.
(3) Industrial Use Only. The Products are for industrial use only and should not be used for personal, family, or household purposes.
(4) No Other Warranties. This limited warranty provides the only warranties with respect to the Products. Asset Guard expressly disclaims all other warranties, whether statutory or implied, specifically including the warranty of fitness for any particular purpose and the warranty of merchantability, as well as any implied warranty from course of dealing or usage of trade. To the extent state law does not allow exclusion of implied warranties, the same are limited in duration to one year if applicable law allows such limitation.
C. STRATAGEN DOES NOT GUARANTEE RESULTS. ALL CONDITIONS, WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED (BY STATUTE OR OTHERWISE), RELATING TO THE ACCURACY OF FITNESS FOR PURPOSE, MERCHANTABILITY, OR WHETHER ARISING BY OPERATION OF LAW, COURSE OF PERFORMANCE OR DEALING, CUSTOM, USAGE IN THE TRADE OR PROFESSION, OR OTHERWISE IN RELATION TO PRODUCTS SOLD OR OFFERED FOR SALE BY STRATAGEN ARE HEREBY DISCLAIMED AND EXCLUDED.
D. First Retail Purchaser Only. These Limited Warranties extend exclusively to the first retail purchaser, which may be defined as the end user of the goods or Products; subsequent owners, transferees, or assigns are granted no rights under these Limited Warranties, although all exclusions and limitations herein continue to apply. There are no third party beneficiaries to these Limited Warranties.
7. Software. In the event that STRATAGEN license software to Customer under a separate license agreement, then the following additional terms and conditions shall apply: STRATAGEN shall not be liable for failure of hardware or software (i) provided by third parties and installed by STRATAGEN or (ii) developed by STRATAGEN and provided to Customer by third parties if installed or used for other than the purpose for which it was manufactured or developed by STRATAGEN.
8. Assignment. No right or interest in this Agreement shall be assigned by Customer without prior written agreement by CARBO Group. No delegation of any obligation owed, or the performance of any obligation by the Customer shall be made without prior written agreement by CARBO Group.
9. Choice of Law. The interpretation and performance of this contract shall be in accordance with and shall be controlled by the laws of the State of Texas, without reference to the conflict of laws and provisions thereof, and specifically excludes the U.N. Convention on Contracts for International Sale of Goods.