1. Please send a copy of your invoice to ap@atlas.energy. Invoices received more than 90 days after completion of work will not be valid and will not be paid.
2. Enter this order in accordance with the prices, terms, delivery method, & specifications listed above. This order is expressly subject to Terms & Conditions and/or a Prime Contract defined below.
3. Please notify us immediately if you are unable to ship as specified.
4. Applicability.
4.1 This purchase order (“Order”) is an offer by Atlas Sand Company, LLC or one of its wholly owned subsidiaries (“Buyer”) for the purchase of the goods and/or services specified on the face of this Order (the “Goods”) from the party to whom the purchase order is addressed (“Seller”) in accordance with and subject to these Terms and Conditions and any Master Service Agreement or Master Subcontractor Agreement (“Prime Contract”) executed between Buyer and Seller. In the event of a conflict with the terms and conditions of this Order the terms of the Prime Contract, the Prime Contract shall control.
4.2 These Terms and Conditions apply to any repaired or replacement Goods
provided by Seller hereunder.
4.3 Buyer is not obligated to any minimum purchase or future purchase
obligations under this Order.
5. Acceptance. This Order is not binding on Buyer until Seller accepts the Order in writing. Buyer may withdraw the Order at any time before it is accepted by Seller.
6. Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date.
7. Delivery Location. All Goods shall be delivered to the address specified in this Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.
8. Shipping Terms. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, and any other documents necessary to release the Goods to Buyer within three (3) business days after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the Order.
9. Title and Risk of Loss. When Buyer is purchasing Sand From a third-party Seller, title and risk of loss of the Sand shall pass to Buyer when Buyer picks up the Sand from the Transload Station or FOB at Seller’s Plant. In all other transactions, Title passes to Buyer upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
10. Packaging. All goods shall be packed for shipment in a manner sufficient to ensure that the Goods are delivered in undamaged condition.
11. Amendment and Modification. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer.
12. Inspection and Rejection of Nonconforming Goods. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 21. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
13. Price. The price of the Goods is the price stated in the Order (the “Price”). If no price is
included in the Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer. This Order is not encumbered until the Goods are received by Buyer.
14. Most Favored Customer. Seller represents and warrants that the price for the Goods is the lowest price charged by Seller to any of its external buyers for similar volumes of similar Goods. If Seller charges any other buyer a lower price, Seller must apply that price to all Goods under this Order. If Seller fails to meet the lower price, Buyer, at its option, may terminate this Order without liability pursuant to Section 21.
15. Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with the Terms and Conditions. Buyer shall pay all properly invoiced amounts due to Seller within forty-five (45) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in US dollars.
16. Setoff. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
17. Warranties. Seller warrants to Buyer that for a period of twelve (12) months from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties.
18. General Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer’s affiliates, successors or assigns, and their respective directors, managers, officers, shareholders, members, and employees, and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the products purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms and Conditions. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
19. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
20. Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order.
21. Termination. Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on three (3) days’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms and Conditions, Buyer may terminate this Order with immediate effect upon written notice to Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms and Conditions, in whole or in part. If Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Buyer may terminate this Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
22. Audit. Buyer may audit Seller’s books and records to confirm compliance with this Order.
23. Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving.
24. Confidential Information. All non-public, confidential or proprietary information of Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
25. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event
or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents Seller from carrying out its obligations under the Order for a continuous period of more than ten (10) business days, Buyer may terminate this Order immediately by giving written notice to Seller.
26. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Seller of any of its obligations hereunder.
27. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
28. Wires. Regarding payments in the form of wire transfers or other electronic funds transfers: (i) Seller is hereby notified that in providing any payment or routing instructions to Buyer, Buyer will rely on the accuracy of the instructions provided by Seller or purportedly provided by Seller, particularly the account, routing and/or transit numbers; (ii) Buyer has no duty to independently verify the accuracy of the information provided by Seller or purportedly provided by Seller; (iii) Buyer will have no liability for losses resulting from errors in payment instructions or from Seller’s failure to prevent unauthorized communications from its systems, including electronic mail or other communication systems; (iv) Seller is required to use extraordinary care in providing electronic funds transfer instructions to Buyer and to ensure that Seller’s systems, including electronic mail or other communication systems, are properly secured to prevent any unauthorized communications, including the prevention of “spoofing” by third parties; and (v) in the event that any such payment to Seller requires an intermediary or corresponding bank to process the wire transfer or other electronic funds transfer, Seller authorizes such bank to deduct its fees from the payment and such fees will be on Seller’s account.
29. Liens. It is a material breach of this Order if Seller or its representative places, files, or
threatens to place or file, a lien or encumbrance on any property of Buyer or any of Buyer’s Indemnitees. If a lien is placed on any such property, Seller shall promptly remove it at Seller’s sole cost.
30. Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas, except for claims or disputes governed by the Prime Contract between Seller and Buyer concerning a Project or joinder and consolidation actions, venue for any mediation, arbitration, or litigation shall be exclusively in Midland County, Texas and nowhere else.
30.1 Joinder and Consolidation. Buyer may join Seller in the proceeding, and Seller consents and waives any objection to joinder. Any separate action instituted by Seller, whether in arbitration, litigation, or otherwise, shall be dismissed or stayed pending the resolution of the action in which Seller is joined or, if pending in the same forum, the separate action may be consolidated into the action in which Seller is joined. If Seller and Buyer are involved in arbitration and the joinder or consolidation pertains to that arbitration, any and all disputes regarding such joinder or consolidation will be decided solely by the arbitrator(s) in accordance with the then current Construction Industry Rules of the American Arbitration Association.
30.2 Seller Bound. In any event, Seller shall be bound to Buyer to the same extent Buyer is bound to Seller by any final decision rendered in any forum for dispute resolution, whether mediation, arbitration, litigation or otherwise. Seller agrees to be bound by the provisions of the general or Prime Contract between Seller and Buyer concerning the Project regarding alternative dispute resolution mechanisms, if any, and to include in any subcontracts and purchase orders corresponding provisions requiring its sub-subcontractors and vendors to be similarly bound.
31. Disputes. All disputes not covered by Paragraph 30, including any dispute that would otherwise be covered but which Buyer does not elect to submit to the dispute resolution procedures contained in the general or Prime Contract between Seller and Buyer concerning the Project, shall be resolved exclusively pursuant to the following dispute resolution procedures:
31.1 Negotiation. The parties shall attempt to resolve any dispute through direct discussions between an executive of Seller and an executive of Buyer.
31.2 Arbitration. At Buyer’s election, any dispute not resolved by direct discussions shall be decided by binding arbitration administered by the American Arbitration Association in accordance with the Construction Industry Arbitration Rules and Mediation Procedures current as of the Order Date. The election to arbitrate may be made at any time. Any arbitration award shall be in writing and shall state the reasons on which the award is based. The award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The Federal Arbitration Act applies to and governs this Order.
31.3 Litigation. At Buyer’s election or if the arbitration provision is unenforceable for any reason, any dispute not resolved by direct discussions shall be decided by litigation. If litigation is initiated by either buyer or seller, the parties knowingly, voluntarily, and intentionally agree to waive any right to a jury trial in the event any dispute, controversy, or claim between buyer and seller is resolved by litigation.
32. Attorneys’ Fees and Expenses. The prevailing party in any dispute resolution proceeding shall be entitled to recover its reasonable attorneys’ fees, expert witness’ fees and expenses in addition to other relief to which it is entitled. The prevailing party shall be determined by the arbitrator or court, as applicable, based on which party substantially prevailed on the matters in dispute, including both substantive issues and monetary recovery (including any claims, offsets, or credits recovered between the parties). It is the intention of the parties that the prevailing party shall be determined based on the totality of the circumstances, and not solely on net monetary recovery.
33. Waiver of Certain Damages. In no event will Buyer be liable to Seller for any indirect, special, incidental, consequential, punitive, or exemplary damages under this Order or arising under any legal theory sounding in contract, tort, equity, or otherwise.
34. Continuation of Work. During the pendency of any claim or dispute resolution proceeding, Seller shall continue supplying goods specified in the Order (unless terminated by Buyer) and shall proceed with any disputed items without waiving any claims properly made and preserved pursuant to this Order, and Buyer shall continue to pay Seller for all undisputed items supplied, subject to the terms and conditions of this Order and any rights of withholding by Seller.
35. Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Setoff, Warranties, General Indemnification, Intellectual Property, Confidentiality, Liens, Governing Law, Submission to Jurisdiction and Survival.