Continental Resources Terms and Conditions - Pending Credit Approval
I. General Terms and Conditions
Acceptance
The terms and conditions of this order become the exclusive and binding agreement between Continental Resources, Inc. (herein known as CRI) and the Customer covering the purchase of the goods, equipment or services or the rental of such goods and equipment ordered when the order is accepted by commencement of performance. Acceptance of this order is expressly limited to the terms hereof. Additional or different terms will not be applicable unless agreed upon in writing by the Buyers and CRI.
Terms of Payment
Payable net 30 days from date of invoice, pending credit approval, unless otherwise expressly agreed upon in writing by CRI. Customers are required to pay invoices for partial shipments net 30 days from date of invoice.
Late Charges
If any rentals or other sums are not paid within ten (10) days of the due date, the customer shall be responsible and pay to CRI on demand a late charge thereon from the due date until payment in the amount equal to the maximum rate permitted by law.
Limitation of Liability
In no event, whether as a result of breach of contract or warranty, tort (including negligence) or otherwise, shall "CRI” be liable for any consequential, incidental, or exemplary damage, including, without limitation, any loss of profit or revenues, loss of use of any equipment or goods, or downtime costs.
NO OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WILL APPLY TO EQUIPMENT AND GOODS SOLD OR RENTED.
License Agreement
If customer agrees to purchase any items that carry a license agreement and if invoice(s) for these product(s) is (are) not paid within approved credit terms, CRI, Inc. reserves the right to, and customer grants permission to, revoke this license agreement(s).
Taxes
Prices do not include any taxes. Taxes will be added to the invoice as required by law to be billed and collected. These taxes will be paid by the Buyer (Rentee) unless the Buyer provides a valid tax exemption certificate.
Additional Provisions
The lessee must cooperate in the completion and filing of financing statements. A UCC-1 financing statement is requested on all lease arrangements.
Deliveries
Customer agrees to accept partial deliveries.
Customer may elect to take complete deliveries if and only if customer agrees to pay for Inventory staged (“temporarily stored”) in CRI’s Nashua, NH, warehouse.
NOTWITHSTANDING THE CUSTOMER MUST AGREE TO SIGN THE “LEASE ACCEPTANCE” NOTICE PROVIDED BY THE LEASING PARTY. SUCH DOCUMENT CANNOT BE UNREASONABLY WITHHELD BASE UPON PARITAL RECEIPT OF GOODS SHIPPED.
Miscellaneous
All Terms and Conditions are subject to the Laws of Massachusetts. Minimum billing is fifty dollars per invoice. Any oral statements about the goods or equipment do not constitute warranties. They shall not be relied upon by the Customer and are not part of the agreement.
II. International Terms and Conditions
All payment terms are in United States Dollars. All international credit granted is governed by The United Nations Convention on Contracts for International Sale of Goods (CISG) and all letters of credit are governed by The Uniform Customs and Practice for Documentary Credits (1993 Revision International Chamber of Commerce Publication No. 500).
III. Rental Terms and Conditions
Rental Terms
All rentals start the day of delivery to the Rentee and continue throughout the minimum term; and thereafter until return of the equipment to a “CRI” Inventory Center, whether or not the period is covered by Rentee’s purchase order.
Rental Rates
The monthly rental rate is based upon the minimum term. Customer shall not have the right to cancel the rental of the equipment prior to expiration of said minimum term upon which a rental is based. Rental charges for fractional months, beyond the original terms, will be pro-rated on a daily basis.
Shipments
Delivery and Freight charges are additional to Customer. Unless the Rentee gives CRI written notice of each defect within three (3) days after receipt of a rented item, it shall be conclusively presumed that the item(s) was delivered in good condition.
Returns: All equipment, manuals and accessories shall be returned to CRI prepaid and insured. Any shipping or handling charges not prepaid will be billed back to Customer. Customer shall return equipment in good operating condition (normal wear and tear excluded) to CRI, Inc., 175 Ledge Street, Nashua, NH 03060-3014; attn: Receiving Department.
Warranties
CRI warrants that each piece of equipment rented meets manufacturer specifications during the course of the rental. Rental credit will be issued for any period an equipment piece does not meet this warranty if written notification is supplied within three (3) days of the start of such a period. See also “Limitation of Liability” under General Terms and Conditions.
Title/Ownership
CRI retains title to all rental equipment. The equipment shall remain the property of CRI and is provided to Customer solely on a rental basis without any option to purchase unless such an option is granted prior to the commencement of the rental period and explicitly set forth in writing.
Customers are precluded from altering, assigning, modifying or encumbering in any way any instruments on rent from CRI.
Liability, Loss, Damage, Repairs
The Rentee is responsible for loss of or damage to equipment from receipt until it is received or returned to CRI’s Inventory Center. Loss of or damage to equipment will obligate the Rentee to replace or repair the equipment at his/her expense or remit the full fair market price to CRI.It is understood that the rental fees will continue through the minimum rental term or until such replacement equipment or the replacement cost is received by CRI, whichever is later.
Default
Upon default CRI may at is option, repossess, re-let or sell the equipment and sue for any loss or revenue deficiency permitted by law, with or without notice to Customer.
Customer will allow CRI to enter upon Customer’s premises to repossess or remove said property and such removal shall not constitute a termination of Customers’ obligation.
Customer agrees to pay all costs and expenses, including attorney fees, incurred by CRI in the repossession, reletting, releasing, transportation, handling or selling of the property.
IV. Sales Terms and Conditions
1. Equipment and goods are shipped F.O.B. Shipping Point.
2. Payable net 30 days from date of invoice, pending credit approval, unless otherwise expressly agreed upon in writing by CRI.
3. All goods or equipment sold byCRI are subject to manufacturers warranty for new equipment or as provided in writing on used equipment. Nonpayment or delinquent payment (5 days or more) “voids” warranty. CRIwill at its discretion, repair or replace any malfunctioning equipment or goods, provided payment is made in due course, except in cases of improper application or misuse of goods or equipment by Customer. The duty to replace is the “sole and exclusive” warranty given and is in lieu of all other warranties express or implied.
4. No equipment or goods will be accepted for warranty repair without prior authorization from CRI. Upon approval, a return authorization number will be issued to Customer. Customer is liable for freight costs both ways. All shipments may be insured upon request by Customer for full value of the goods or equipment purchased. In case of shipping damage, warranty does not apply. It is Customer’s responsibility to contact forwarder promptly and register a claim. Concealed damage should be reported at once and claim made to forwarder in writing. CRI does not provide any insurance on shipments made to Customer.
5. Loss by theft must be reported to the local police department and CRI within 24 hours of occurrence and a copy of the police report should be forwarded to: Controller, CRI, Inc., 175 Middlesex Turnpike, Bedford, MA 01730.
6. All sales are NON-CONCEALABLE. However, CRI, will extend to customer the vendor or manufacturers return rights per their policy in existence at the time of return in addition charge a restocking and diminutive fee.
7. The purchaser may not elect a third party payer, and CRI will not accept any obligation to re-bill or otherwise change mode of billing or responsibility for payment. This includes leasing companies, banks or other parties who may wish to gain title to “the goods or equipment”.
8. CRI retains title to all purchased goods and equipment until the sale invoice is paid in full, at which time title will convey to the buyer. Invoices are pro forma and do not convey title until paid.
9. Prices are subject to change without notice. CRI is not responsible for typographic errors.
10. Unless otherwise indicated or agreed, each electronic instrument is shipped, calibrated and guaranteed to meet manufacturer’s original specifications.
11. DISCLAIMER EXCLUSIONS OF WARRANTIES. The parties agree that the implied warranties of merchantability and fitness for a particular purpose and all other warranties express or implied, including without limitation, warranties as to description, quality or productiveness are excluded from this transaction and shall not apply to the goods or equipment sold unless the parties shall otherwise agree in writing.
V. Terms and Conditions Schedule and Scope for Professional Services (Schedule for Work) under $50,000.
1. Payment Terms. All amounts billed to Customer shall be immediately due and payable upon the rendering of the invoice.
2. Taxes.Prices do not include any taxes. Taxes will be added to the invoice as required by law to be billed and collected. These taxes will be paid by the Buyer (Rentee), unless theBuyer provides a proper tax exemption certificate.
3. Confidential Information. Customer acknowledges that CRI does not wish to receive from Customer any information which may be considered confidential or proprietary in nature. Customer represents and warrants that no information will be provided to CRI that is confidential or proprietary to Customer or any of its affiliates or authorized channels or any third party. CRI will not be obligated to retain in confidence or in any way restrict the use by CRI of any such information. In the event it becomes necessary to exchange information that is deemed confidential or proprietary to Customer or CRI , such exchange shall not occur prior to the execution of a written confidentiality agreement or shall occur at the risk of Customer.
4. Hiring CRI Employees or Representatives of CRI . During the term of this Schedule for Services and during the two (2) year period following the termination (for any reason) of this Agreement for Services, Customer agrees not to hire or solicit the employment of any employee, agent, representative, independent contractor or subcontractor of CRI (an "Engaged Party"). If Customer hires an Engaged Party in violation of such restriction, Customer shall be responsible for all costs and expenses as may be incurred by CRI to replace such Engaged Party and, in order to compensate CRI for its inconvenience and the disruption to its business, CRI shall be due an additional amount from Customer as liquidated damages equal to three hundred and fifty (350) times the Engaged Party's standard hourly billing rate charged to customers by CRI . Customer agrees and acknowledges that the restrictions and amounts of damages set forth in this Section (D) are reasonable and necessary in order to protect CRI 's legitimate business interests.
5. Software Network. If so provided under a particular Schedule for Services, CRI will perform the installation and setup of network-based applications provided by CRI . Unless otherwise indicated, default configurations for the software will be used. In this regard, it will be necessary for Customer to fully disclose all existing applications requirements and compatibilities for inclusion in one or more Schedules for Services. If Customer fails to disclose existing applications requirements and compatibilities, CRI may not be able to provide for the operation of existing applications on the network or maintain the compatibility of any software with existing hardware or software. In all events, CRI shall not be responsible for any failure or incompatibility involving or arising from the materials, documentation or functioning of any existing software or hardware; accordingly, additional steps may be necessary to complete the installation of software and/or setup of Customer's network, at Customer’s sole cost and expense. CRI will verify the operation of Customer's new network based applications from each individual node.
6. Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THIS SCHEDULE FOR SERVICES, CRI MAKES NO WARRANTIES CONCERNING ANY SERVICES OR WORK TO BE PERFORMED HEREUNDER AND CRI EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CRI SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO ANY OBLIGATIONS TO CUSTOMER OR THIRD PARTIES FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, RELATIVE TO LOSS OF DATA, LOSS OF USE OF ANY EQUIPMENT OR GOODS, NETWORK DOWNTIME COSTS, OR FOR LOSS OF PROFIT OR REVENUES ARISING THEREFROM).
7. Indemnification. Customer shall indemnify, defend and hold harmless CRI from and against any and all suits, claims, losses, demands, debts, obligations and liabilities arising pursuant to a breach or threatened breach by Customer (including Customer's officers, directors, employees, agents, independent contractors and representatives) of this Agreement for Services, including, without limitation, all damages, costs, expenses, and reasonable attorneys' fees, costs and expenses (including, without limitation, settlement costs) incurred in connection with this Agreement for Services, the enforcement of any of CRI 's rights hereunder, or otherwise arising in connection with CRI 's business relationship with Customer.
8. Insurance. CRI shall maintain at its own expense such insurance as will protect Customer from claims for damage for bodily injury, including death, and for property damage which may arise from CRI activities under this Agreement for Services at the address of Customer set forth on Page 1, whether such activities are performed by CRI or by any subcontractor or anyone directly or indirectly under their control.
(1) Workers’ Compensation Insurance in compliance with the Workers’ Compensation and Occupational Disease Acts of the State wherein the services are to be performed, if such act requires part or all of CRI liability to employees for occupational accidents or diseases to be satisfied by such insurance.
(2) Comprehensive General Liability Insurance with limits of liability of not less than $1,000,000 for each occurrence combined single limit for bodily injury, including death and property damage.
(3) Comprehensive automobile liability insurance (including hired car and non-ownership liability insurance, if any automobiles or trucks will be hired by CRI or if CRI employees will use their personally owned vehicles in the business of CRI ) with limits of liability of not less than $1,000,000, each occurrence combined single limit for bodily injury, including death and property damage. Upon request, CRI agrees to provide evidence of such insurance to Customer.
9. Interest on Late Payments; Costs of Collection. Interest shall accrue on any amounts due CRI that are not paid within thirty (30) days from the date of invoice at a per annum rate of interest equal to eighteen percent (18%) or the maximum per annum rate of interest that may be charged by law. In the event of a late payment, interest charges shall be assessed from the date of the invoice (i.e., the date the invoice was rendered), without notice to Customer. Customer shall be responsible for any and all costs of collection incurred by CRI with respect to amounts due from Customer under this Agreement for Services, including, without limitation, for attorneys' fees, costs, and expenses.
10. Force Majeure. Neither party shall be in default or liable for any delay or failure to perform any of its obligations under this Agreement for Services if such delay or failure arises directly or indirectly out of an act of God, acts of a public enemy, freight embargoes, strikes, quarantine restrictions, unusually severe weather conditions, insurrection, riot, and other such causes beyond the control of the party, provided that, if such is possible, the party whose performance is excused notifies the other party.
11. Termination. (1) Either party may terminate this Schedule for Services at any time by giving the other party written notice of termination, provided such notice shall be given at least ninety (90) days prior to the effective date of termination of this Agreement for Services. (2) CRI may terminate this Agreement for Services immediately by giving Customer written notice of termination due to the occurrence of one or more of the following events: (a) Customer for any reason ceases conducting business; (b) a change of beneficial ownership or control of Customer; (c) the death or incapacity of Customer (if applicable); (d) the termination of existence, merger, consolidation, dissolution, winding up or liquidation of Customer; (e) the entry of an order for relief or similar order with respect to Customer in any proceeding pursuant to Title 11 of the United States Bankruptcy Code, or Customer shall be subject to any proceeding under any other federal or state bankruptcy or insolvency laws or makes or contemplates making an assignment of its assets or similar accommodations for the benefit of its creditors; or (f) the breach or failure of Customer to observe any material provision of this Agreement for Services, including, without limitation, to pay any amounts when due to CRI under this Agreement for Services. Sections V(E) and V(H) of this Agreement for Services and Customer's payment obligations shall survive the termination (for any reason) of this Agreement for Services
VI. Statement of Work (contracts over $50,000)
For professional services contracts over $50,000 a customized contract is prepared for the customer outlining specific terms and conditions. This agreement will incorporate many of the general terms and conditions listed above plus additional conditions which will apply to the particular project for which CRI has been engaged.
Upon written request from the Customer, CRI will provide the Customer with the specific Manufacturer Warranty(s) required.
rev061506
