Terms & Conditions for the sale of services and products:

• APPLICATIONS AND CONDITIONS: “Pacific” shall sell and the Buyer shall purchase the Goods in accordance with any quotation or offer of “Pacific” which is accepted by the Buyer, or any order of the Buyer which is accepted by “Pacific”; and These Terms and Conditions “AGREEMENT” shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted by “Pacific”, or any such order is made of purported to be made, by the Buyer.

 

• AGREEMENT & ACCEPTANCE: Orders or other requests, whether oral or written, for the supply of products and services to be provided by “Pacific”, on behalf of itself and its divisions and subsidiaries, or by its affiliates (“Pacific”) to its customers (each a “Buyer”) (the “Orders”) are subject to Pacific’s written acceptance by an authorized representative of “Pacific” and any Orders so accepted will be governed by (a) the terms and conditions stated in these Terms and Conditions for provision of services and products (the “Terms and Conditions”); (b) the written proposal submitted by “Pacific” to Buyer (“Proposal”), if any; (c) the written order acknowledgement  issued by “Pacific” to Buyer (“Acknowledgment”), if any; and, (d) any change orders identified as such agreed to in writing by Pacific (the Order, Terms and Conditions, Proposal, Acknowledgment and any such change order, and any such additional terms as agreed to in writing by an authorized representative of “Pacific” collectively referred to herein as the (“Agreement”). Buyer’s submission of a purchase order (or other similar document) shall be deemed to be an express acceptance of these terms and Conditions notwithstanding language in Buyer’s purchase order (or other similar document inconsistent herewith and any inconsistent language in Buyer’s purchase order or other similar document) is hereby rejected.

 

• PRICES: Prices of products and services shall be as stated in the Proposal or Acknowledgment, or if there is no Proposal or Acknowledgment, as otherwise agreed to writing by “Pacific”. Unless otherwise specified, all priced contained in a Proposal are valid for thirty (30) days from date of issue of the Proposal. All price quotations are EXW Pacific’s premises (INCOTERMS 2010), or as agreed per the Proposal or Acknowledgment and are subject to change with notice. Pacific’s bears no responsibility for any consular fees, fees for legalizing invoices, certificates or origin, stamping bills of lading or other charges required by the laws of any country of destination, or any fines, penalties or interest imposed due to incorrect declarations. Charges will be added for factory preparation and packaging for shipment. Minimum freight and invoice charges in effect at the time of the Order shall apply. If by reason of any act of government, the cost to “Pacific” of performing its obligations hereunder is increased, such increase shall be added to the quoted price.

 

• TAXES: Transaction Taxes. In addition to the charges due under this agreement, the Buyer shall be responsible for, and shall protect, indemnify, defend and save harmless “Pacific” from and against the reporting, filing and payment of any taxes, duties, charges, licenses, or fees (and any related fines, penalties or interest and the like) imposed directly on Buyer as a result of this Agreement and all liabilities, costs, and associated expenses (including lawyers’ and experts’ fees) which may be incurred in connection therewith. Such taxes, duties, charges, licenses, or fees include but are not limited to any local, state, federal, foreign, or international sales, use, value added tax (“VAT”), goods and services tax (“GST”), rental, import, export, personal property, stamp, excise and like taxes and duties. If “Pacific” pays any such tax, Buyer shall, within thirty (30) days of “Pacific’s” written demand reimburse Pacific for the tax including interest fines, and penalties, paid by “Pacific”. It shall be Buyer’s sole obligation after payment to “Pacific” to challenge the applicability of any tax.

 

Notwithstanding the foregoing, the Buyer shall provide “Pacific” with a copy of all exporting documents and any other documents reasonably requested by Pacific to prove or substantiate to the appropriate tax authorities the goods were timely exported.

 

Withholding Taxes. If Buyer is required by any appropriate government or agency to withhold compensation due to “Pacific” to satisfy any obligation of “Pacific” for taxes shall give at least 30 days’ notice to “Pacific” that Buyer will withhold. Buyer agrees to pay on a timely basis the amounts so withheld over to the appropriate government department or agency on behalf of “Pacific”, and to provide “Pacific” with any tax receipts (originals, if possible) or other reliable evidence of payment issued by such government or agency within 30 days of the date required or withholding. Buyer shall not withhold compensation due to “Pacific” if Pacific produces evidence, acceptable to Buyer that “Pacific” is not subject to the withholding of such taxes. Buyer agrees that it shall not unreasonably withhold such acceptance. Buyer shall reimburse “Pacific” for any taxes withheld for which receipts or other reliable evidence substantiating the remittance of taxes to the appropriate government department or agency are not provided to “Pacific”. Buyer’s obligation to deliver to Pacific tax receipts or other reliable evidence issued by the taxing authority shall not apply if Buyer establishes to the reasonable satisfaction of “Pacific” that the appropriate government department or agency does not provide such documentation. Notwithstanding the above, if Buyer is required to pay any such taxes or amounts that Buyer believes is directly attributable to “Pacific”, Buyer shall first provide notice to “Pacific” and give “Pacific” an opportunity to intervene to protect its interest before Buyer makes any payment.

 

Protest Rights. If the Buyer receives any demand or request for payment of any levies, charges, taxes or contributions for which it would seek indemnity or reimbursement from “Pacific”, Buyer shall promptly and timely notify he “Pacific” in writing of such demand or request. “Promptly and timely” as used in this sub clause means that Buyer must notify “Pacific” so that “Pacific” has enough time and a reasonable opportunity to appeal, protest or litigate the levies, charges, taxes or contributions in an appropriate venue. To the extent

that Buyer fails to give prompt and timely rom Buyer. “Pacific” shall not be responsible for any compromise made by Buyer without

Pacific’s prior written consent.

 

• PAYMENT TERMS: Unless alternate payment terms are specified and agreed to by “Pacific” in writing, all charges, including applicable packing and transportation costs, billed by “Pacific” are subject to 30% down payment for total amount of invoice and balance payable prior to shipment via wire transfer to Pacific’s bank account (as indicated in Pacific’s original invoice). Unless otherwise specified, all payments are due in US Dollar, specified in Pacific’s Proposal, Acknowledgment and/or invoice. Interest shall be due from Buyer to “Pacific” on overdue accounts at the maximum rate allowed by law. When partial shipments are made, the goods will be invoiced as shipped and each invoice will be treated as a separate account and be payable accordingly. Payments for goods are due whether or not technical documentation and/or any third party certifications are complete at the time of shipment. “Pacific” shall be entitled to recover all reasonable attorneys’ fees and other costs incurred in the collection of overdue accounts. “Pacific” reserves the right, where a genuine doubt exists as to Buyer’s financial position or if Buyer is in default of any payment obligation, to suspend delivery or performance of any Agreement or any part thereof without liability and without prejudice to, and without limitation of, any other remedy available to “Pacific” until Buyer cures the default or satisfactory security for payment has been provided. “Pacific” shall have the option to extend the delivery date by a time at least equal to the period of such suspension.

 

• DELIVERY: Unless otherwise agreed to by “Pacific” in writing, delivery terms shall be EXW Pacific’s premises (INCOTERMS 2010) except to the extent modified by these terms and Conditions. Where good are to be supplied from stock, is subject to availability of stocks at the date of delivery Partial shipments may be made as agreed to by Buyer and “Pacific”. Stated delivery dates are approximate only and cannot be guaranteed. “Pacific” shall have no liability for damages arising out of the failure to keep a projected delivery date, irrespective of the length of the delay. In the event Buyer is unable to accept delivery of good when tendered, “Pacific” may, at its option, arrange for storage of the goods at Buyer’s sole risk and Buyer shall be liable to Pacific for the reasonable cost of such storage.

 

 

This provision is without prejudice to any other rights which “Pacific” may have with respect to Buyer’s failure to take delivery of goods, which includes the right to invoice Buyer for the goods. Buyer agrees that title to the stored goods will transfer to Buyer upon invoicing notwithstanding Buyer’s inability to accept delivery and that Buyer assumes all risk of loss or damage to the goods from the date title passed to Buyer. Buyer is responsible for all shipping costs from Pacific’s premises to the location as designated by the Buyer. All shipping costs for the return of goods from the location specified by Buyer to Pacific’s premises shall also be for Buyer’s account.

 

• FORCE MAJEURE: If either party is unable by reason of Force Majeure to carry out any of its obligations under this Agreement, other than the obligations to pay money when due and indemnification obligations assumed hereunder, then on such party giving notice and particulars in writing to the other party with a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended. “Force Majeure” shall include acts of god, laws and regulations, government action or inaction, war, civil, disturbances, strikes and labor problems, delays of vendors, carriers, lightening, fire flood, washout, storm, breakage or accident to equipment or machinery, shortage of raw materials, and any other causes that are not reasonably within the control of the party so affected. “Pacific” shall be paid its applicable standby rate, if any, during any such Force Majeure event.

 

• CANCELLATION: All of Pacific’s documents, drawings and like information shall be returned to “Pacific” upon Buyer’s request for cancellation. The following minimum cancellation charges will apply:

1. a) 25% of Agreement value if canceled 10 days after the date of placing the order.
2. b) 50% of the Agreement value if canceled after 30 days
3. c) 100% of the Agreement value if cancelled after 45 days from date of placing the order.

 

9) TITLE AND RISK OF LOSS: For purchased goods, ownership and risk of loss pass to Buyer upon the earlier of (a) Pacific’s delivery of the goods or (b) invoicing by “Pacific” for the goods where Buyer is unable to accept scheduled date. “Pacific” retains a security interest in the goods until the purchase price has been paid, and Buyer agrees to perform upon request all acts required to secure Pacific’s interest. “Pacific” accepts no responsibility for any damage, shortage or loss in transit. “Pacific” will attempt to pack or prepare all shipments so that they will not break, rust or deteriorate in shipment, but “Pacific” does not guarantee against such damage. Claims for any damage, shortage or loss in transit must be made by Buyer on the carrier.

 

10. RETURN OF MAKE TO STOCK GOODS: With Pacific’s written approval, unused, incorrectly shipped or “Made for Stock” good ordered incorrectly, in new condition and of current manufacture and catalog specifications may be returned by Buyer for credit (subject to a restocking fee), provided written request is received within one (1) month after the receiving date. Non-standard goods are not returnable for credit and such goods shall only be accepted for return with the prior written agreement of “Pacific”. Requests for return of goods must show the original purchase order number, invoice number, description of material, and date of purchase. Return of goods does not relieve Buyer of the obligation to make payment against Pacific’s invoice, and any credit or refund allowed will be issued following Pacific’s receipt of the goods. The credit allowed on returned goods, if any, is a merchandise credit and is applicable only against future purchases of “Pacific” goods. The credit given will be solely in Pacific’s discretion and may be based on the original or a subsequently adjusted price.

 

11. LIABILITIES, RELEASES AND INDEMNIFICATION: For purpose of this Article, the following definitions shall apply:

“Pacific” shall mean (i) “Pacific”, its parent, subsidiary or related companies, (ii) its and their working interest owners, co- lessee, co-owners, partners, joint ventures, if any, and their respective parents, subsidiary or related companies and (iii) the officers, directors, employees, consultants, agents and invitees of all of the foregoing.

Buyer shall mean (i) Buyer, its parent, subsidiary or related companies, (ii) its and their working interest owners, co-lessees, co- owners, partners, joint venture, if any, and their respective parents, subsidiary or related companies and (iii) the officers, directors, employees, consultants, agents and invitees of all of the foregoing.

“Claims” shall mean all claims, demands, causes of action, liabilities, damages, judgments, fines, penalties, awards, losses, costs, expenses (including, without limitation, attorneys’ fees and costs litigation of any kind or character arising out of, or related to, the performance of or subject matter of this Agreement (including without limitation, property loss or damage, personal or bodily injury, sickness , disease or death, loss of services and/or wages, or loss of consortium or society).

1. a) “Pacific” shall release, indemnify, defend and hold Buyer harmless from and against any and all Claims in respect to personal or bodily injury to sickness, disease or death of any member of “ Pacific ” or “Pacific’s”, subcontractors or their employees, agents or invitees, and all Claims in respect of damage to or loss or destruction of property owned, leased, rented or hired by any member of “Pacific” or “Pacific’s” subcontractors or their employees, agents or invitees.
2. b) Buyer shall release, indemnify, defend and hold “Pacific” harmless from and against any and all Claims in respect to personal or bodily injury to, sickness, disease or death of any member of Buyer or Buyer’s subcontractors or their employees, agents or invitees, and all Claims in respect of damage to or loss or destruction of property owned, leased, rented or hired by any member of Buyer or Buyer’s subcontractors or their employees, agents or invitees.

 

1. c) Notwithstanding anything contained in this ‘Agreement’ to the contrary, neither party shall be liable to the other and each party releases the other for any indirect, special, punitive, exemplary or consequential damages or losses (whether foreseeable at the date of this Agreement, including without limitation, damages for lost production, lost revenue, lost product, lost profit, lost business opportunities.

 

1. d) The exclusions of liability, releases and indemnities set forth in paragraphs A. through F. of this article shall apply to any claim(s), losses or damages without regard to the cause(s) thereof, including but not limited to pre-existing conditions, whether such conditions be patent or latent, the unseaworthiness of any vessel or vessels, imperfection of material, defect of failure of products or equipment, breach of representation or warranty (express or implied), ultrahazardous activity, strict liability, tort, breach of contract, breach of duty (statutory or otherwise), breach of any safety requirement or regulation, or the negligence or other legal fault or responsibility of any person (including the indemnified or released party, whether such negligence be sole, joint or concurrent, active or passive.

 

12) INSURANCE: Upon written request, each party shall furnish to the other party certificates of insurance evidence the fact that the adequate insurance to support each party’s obligations hereunder has been secured. To the extent of each party’s release and indemnity obligations expressly assumed by each party hereunder, each party agrees that all such insurance policies shall, (a) be primary to the other party’s insurance; (b) include the other party, its parent , subsidiary and affiliated or related companies, and its and their respective officers, directors, employees, consultants and agents as additional insured; and (c) be endorsed to waive subrogation against the other party, its parent, subsidiary and affiliated or related companies. And its and their respective officers, directors, employees, consultants and agents.

 

13. GOVERNING LAW: This “Agreement” shall be governed and interpreted in accordance with the substantive laws of the State of Delaware, excluding conflicts and choice of law principles. Each of the parties hereby agrees to irrevocably submit itself to the exclusive jurisdiction of each such courts in any such action or proceeding and waives any objection it may now or hereafter have to venue or convenience of forum.

 

Both parties agree that, to the extent allowed by the governing law, each party hereby waives all rights to a jury trial with respect to any litigation involving this agreement. The parties expressly agree to a judge trial. Nothing herein shall prohibit Pacific from availing itself of a court of competent jurisdiction for the purpose of injunctive relief.