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The terms and conditions set forth herein govern each and every materials-only purchase order (“PO”) agreed to as between you, the provider of goods/materials (“Vendor”), and ordered by Pro Star Energy Solutions, L.P. (“ProStar”) wherein Vendor agrees to furnish the goods/materials (“Goods”) specified in each PO issued by ProStar and incorporating these Terms and Conditions.
All correspondence pertaining to a PO must be addressed as follows: Attn: Pro Star Energy, Logistics, with copy to Accounting, at: One Cowboys Way, Suite 575, Frisco, Texas 75034.
All shipments are to be freight on board (FOB) per the address listed on each PO. When shipping, delivery by Vendor to a common carrier does not constitute delivery to ProStar. Any claim for loss or damage incurred during delivery shall be between the Vendor and the carrier. ProStar accepts title only after receipt at the FOB delivery point. ProStar shall note all damages on the freight bill. The Vendor shall replace the damaged merchandise or be subject to damages for breach of contract. If damage is to a small portion of the total shipment and ProStar will not be inconvenienced because of this shortage, the Vendor may be permitted by ProStar to deduct the amount of damage or loss from his invoice, in lieu of replacement.
All Goods purchased are subject to inspection and rejection upon receipt by ProStar. Rejected Goods may be returned at the Vendor’s expense or charges paid by ProStar in returning rejected items shall be reimbursed by the Vendor. ProStar’s count and inspection shall be final and conclusive on all shipments not accompanied by a packing ticket. In addition to its right to return rejected Goods, ProStar may notify the Vendor of damages or deficiencies, or non-performance, and if not repaired or corrected by the Vendor within ten (10) days after receipt of notice, or such additional time as may be mutually agreed to by ProStar and the Vendor, ProStar shall have the right to correct any damages, defects, insufficiencies or improprieties and do any other work necessary to put the Goods in condition for the use intended. The cost of such correction shall be deducted from monies due the Vendor under the corresponding PO.
Vendor agrees to invoice ProStar for the Goods pursuant to the rate or price set forth in each PO and ProStar agrees to remit payment for approved charges after receipt of an invoice in accordance with this section. ProStar’s payments to Vendor shall be payable net forty-five (45) days so long as (i) Vendor invoices ProStar for the Goods pursuant to the corresponding PO and (ii) Vendor has submitted a complete and up to date W9 to ProStar. Payment terms will commence upon receipt of a correct invoice. Vendor shall itemize, at minimum, the following on each invoice provided to ProStar: (i) the description of Goods shipped (as applicable), (ii) applicable taxes, (iii) reference to the corresponding PO Number for which the Goods have been shipped, and (iv) any other reasonably pertinent information as requested by ProStar. In case of error in calculation or typing, the quoted rate or price will be used as the basis for correction of the corresponding PO. If requested by ProStar, Vendor agrees to participate in ProStar’s online invoice program(s). ProStar reserves its right to add or modify any online registration portals at any time and will reasonably communicate the same in advance to Vendor. As between ProStar and Vendor, Vendor agrees it is wholly responsible for payment of any and all federal, state, and/or local taxes that are or may be legally assessed upon the Goods, including materials, supplies, tools, equipment and machinery furnished by said Vendor in connection with the corresponding PO. Additionally, Vendor agrees to provide ProStar with a copy of its sales tax returns respecting its shipment of Goods at a property upon request by ProStar.
Vendor shall not assign any PO without the prior written approval of ProStar.
Vendor represents the Goods to be supplied and any of its components shall be commercial grade and suitable for its intended use, as such and in addition to any other warranty, the Vendor warrants that the Goods delivered hereunder shall be free from all defects in material and workmanship and shall comply with all the requirements of each corresponding PO for a period of one (1) year from the date such Goods are delivered. Extended warranties beyond this period apply when specifically shown on the order. Any attempt to change, add, modify, or delete any warranty provision (including change by use of package labeling or inserts), will not be binding on ProStar unless it is agreed to in writing. The terms and conditions of a PO and these Terms and Conditions shall prevail over any conflicts with the Vendor’s proposal. Vendor acknowledges and agrees that any and all Goods provided shall be on a non-exclusive basis. The terms and conditions set forth in this section shall apply to all Goods unless otherwise agreed to by Vendor and ProStar in writing on a per PO basis.
ProStar may at any time by written instructions make changes, within the general scope of the terms of a PO. If any such change causes an increase or decrease in the cost of and/or the time required for the performance of the corresponding PO, an equitable adjustment shall be made in the price and/or delivery schedule and the PO shall be modified in writing accordingly. Any claim by ProStar for adjustment under this paragraph must be asserted within ten (10) days of receipt of the notification of change. ProStar, if it decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under the corresponding PO. Except as otherwise provided, no attempt by Vendor or ProStar to waive, change, delete, add or otherwise alter, any term and condition of a PO shall be effective unless it is agreed to in writing by Vendor and ProStar.
ProStar reserves the right to cancel a PO or any part thereof without penalty outside of ten (10) days of scheduled delivery, or if the Vendor fails to comply with the terms and conditions of the transaction, or fails to fulfill the requirements with promptness and diligence, or fails to make shipment within the time agreed upon, except for causes beyond the Vendor’s reasonable control.
In case of error in calculation or typing, the quoted unit price will be used as the basis for correction of a PO.
If any terms in a PO are in conflict with the terms of the attached documents, the corresponding PO’s terms shall prevail and remain binding on Vendor and ProStar. Any attachments to a PO are solely for the purpose of clarification of the Goods being provided to ProStar. Under no circumstance will any attachments to a PO modify or add any legal obligations beyond these Terms and Conditions.
The invalidity or unenforceability in particular circumstances of any portion of a PO shall not extend beyond such provision or circumstances and no other provision of a PO shall be affected thereby. If, for any circumstance whatsoever, fulfillment of any provision of a PO, or any other document related thereto, or the exercise of any right or remedy whatsoever contained herein or in any other instrument in connection herewith, shall involve transcending the limit of validity prescribed by applicable statute or law, then the obligation to be fulfilled shall be reduced to the limit of such validity. No delay on the part of ProStar in exercising any right, power or privilege hereunder shall operate as a waiver thereof, and no single or partial exercise of any right, power or privilege hereunder shall preclude further exercise thereof, or be deemed to establish a custom or course of dealing or performance between the Vendor and ProStar, or preclude the exercise of any other right, power or privilege. No waiver of any provision of a PO shall be effective unless such waiver is memorialized in a writing signed by ProStar. The rights, powers, remedies and privileges herein are cumulative and not exclusive of any other rights, powers, remedies or privileges which ProStar would otherwise have at law or in equity or otherwise.
Each PO is subject to and shall be construed in accordance with the laws of the State of Texas without regard to its choice of law provisions. Vendor and ProStar hereby agree to submit themselves to the exclusive jurisdiction of the state and federal courts of Collin County, Texas. Vendor agrees that the Goods and any materials provided in connection with a PO will be sold, delivered or provided in compliance with all statutes, ordinances and regulations of all federal, state, county and municipal or local governments, and of any and all of the departments or bureaus thereof applicable to the carrying on of its business, including without limitation, the Environmental Protection Agency, Uniform Commercial Code as adopted by the State of Texas, and Occupational Safety and Health Administration regulations. Vendor agrees to keep and preserve complete, truthful and accurate records so as to be able to verify Vendor’s compliance with all of its duties and obligations hereunder. From the date the Goods are received by ProStar and for one (1) year thereafter, ProStar and/or its authorized representative may have access to the aforementioned records and to examine them during normal business hours provided ProStar provides Vendor with reasonable advance written notice.
Vendor agrees to indemnify, defend and hold ProStar, its directors, officers, subsidiaries, affiliates, owners, joint ventures, partners, employees, agents, representatives and the companies ProStar represents from and against any and all claims, demands, obligations, causes of action (including pre-lawsuit court orders), losses, lawsuits and all other damages, liabilities (determined by verdict, judgment or good faith settlement of a claim), fines, judgments and reasonable costs and expenses associated therewith (including the payment of reasonable attorney fees and disbursements) of defending a claim (whether such claim is valid or found invalid) of liability arising out of or related to the Goods. ANY ATTACHMENTS, DRAWINGS, RENDERINGS, PRICING LISTS, QUOTES, ETC. NECESSARY AND RELATED TO THE GOODS MAY BE ATTACHED TO THE CORRESPONDING PO AND WILL BE INCORPORATED THEREIN AT ALL TIMES SUBJECT TO THESE TERMS AND CONDITIONS.
By accepting a PO from ProStar to provide the Goods, Vendor is agreeing to be and is bound to these Terms and Conditions. These Terms and Conditions are perpetual and apply to each PO unless modified by ProStar. ProStar may review and update its Terms and Conditions from time to time in its sole discretion and without notice to Vendor.