terms & conditions
These Terms and Conditions apply to all products or spare parts sold, leased, or otherwise supplied by, and all services performed by (“Services”), Probe Technology Services, Inc. (“Probe”) pursuant to a purchase order or other order placement document submitted by a buyer or its designee (“Buyer”) to Probe. All Probe Products and Services are supplied only under the following Terms and Conditions, and the use and/or acceptance of any Probe Products or Services by Buyer shall constitute Buyer’s acceptance of these Terms and Conditions in their entirety.
1. Price.
(a) All prices are expressed in United States dollars, EXW, Fort Worth, Texas, per ICC INCOTERMS 2010, and unless otherwise agreed in writing by Probe, are subject to change without notice and are at the prices in effect at the time of Buyer’s order placement. Quotations will be given on request for any Product or Service offered by Probe. Any quotation will remain in effect only for the period of validity specified therein or, if no such period is stated, for thirty days from the date the quotation is issued by Probe.
(b) All prices are exclusive of costs of transportation and insurance and any applicable federal, state, or local use, sales, property (ad valorem), and similar taxes and license fees, import duties and the like. No consular or other fees for legalizing invoices or stamping shipping documents, or other fees or documentation charges required by the laws of any country or destination, are included in quoted selling prices. Buyer shall pay all such costs, taxes, fees, and duties, and where appropriate, shall report the same. When applicable, such costs, taxes, fees and duties may appear as separate Products or Services on Probe’s invoice.
2. Payment.
(a) Payment for all Products shall be net cash United States funds prior to shipment (except that certain Buyers with an established credit account currently approved by Probe in writing may pay net cash within thirty days following invoice date). Upon written approval by Probe, Probe may also accept payment by letter of credit on terms acceptable to Probe in its sole discretion. Partial shipments will be invoiced as made. All invoices are payable in Fort Worth, Tarrant County, Texas. The Buyer shall pay fifty percent (50%) of the total purchase price for any order before any action is taken or work begun by Probe, unless other arrangements are approved by Probe in advance in writing.
(b) Interest from the invoice due date until payment, at eighteen percent per annum (or such lesser amount as is the maximum legal rate), will be charged by Probe on invoiced amounts remaining unpaid sixty days after the due date. If unpaid amounts are collected through a collection agency, legal proceedings, or an attorney, Buyer shall immediately pay all reasonable collection fees, attorneys’ fees, and court costs incurred by Probe in connection therewith.
(c) Payment terms for Services shall be agreed between Probe and the Buyer in writing in advance of the delivery of such Services; provided, however, that in the event that such a written agreement shall not be in place for any reason, then Probe shall charge Buyer for such Services at its standard commercial rates.
3. Delivery Dates and Excusable Delays. All shipment and/or delivery or completion dates for Products or Services are subject to Probe’s availability schedule, and to receipt of any advance payments required under Section 2(a). Probe will make every reasonable effort to meet any date(s) quoted: however, Probe will not be liable for its failure to meet any quoted date(s) or for any other delay in performance due to any unforeseen circumstances or any causes beyond Probe’s reasonable control including, without limitation, strike or lockout; civil disturbance; international conflicts; fire; natural disaster; accident; failure or breakdown of parts necessary for completion; subcontractor, supplier, or Buyer-caused delays; delay in obtaining any required export or other license; inability to timely obtain labor, materials, or manufacturing facilities or equipment; engineering issues affecting acceptable quality or performance standards; or compliance with any law, regulation, or order of any governmental body or instrumentality thereof. Performance shall be deemed suspended for such time as any such circumstances or causes shall delay its execution. Whenever such circumstances or causes have been remedied, Probe will make and Buyer shall accept performance hereunder. No penalty clause of any kind from Buyer shall be effective as against Probe. As used herein, performance shall include, without limitation, fabrication, assembly, shipment, delivery, and warranty repair or replacement, as applicable.
4. Packing. All Products shall be packed, if appropriate, for shipping and storage in accordance with standard commercial practices.
5. Shipment. Unless otherwise agreed by Probe in writing, all Products are sold EXW per ICC INCOTERMS 2010. When, as an accommodation to Buyer, Probe agrees to make shipment to Buyer’s nominated delivery point, Probe will ship in accordance with Buyer’s shipping instructions and Buyer shall bear all charges and all risks arising in connection with such shipment. In the absence of shipping instructions from Buyer, or if Probe considers Buyer’s shipping instructions unavailable or commercially unsuitable, Probe reserves the right to ship by any commercially reasonable method at Buyer’s cost. Probe shall not be liable for any short or incomplete shipments unless Probe receives from Buyer written notice of any such shortage or missing Products within fifteen days of receipt of shipment by Buyer.
6. Changes, Cancellation, and Returns.
(a) Probe reserves the right to change designs, materials, and specifications of its Products, and to discontinue any such Products, without any notice or liability to Buyer.
(b) If Buyer issues a change order or cancels an order, Buyer shall be liable to pay to Probe the whole cost and loss incurred by Probe resulting from such change or cancellation, as such is reasonably determined by Probe, which shall include all costs, direct and indirect, plus a pro rata proportion of normal profit.
(c) No credit shall be given for any Product returned by Buyer unless returned with the prior approval of an authorized representative of Probe issuing to the Buyer a Return Goods Number. Only sales managers, major department managers, or officers of Probe are authorized to approve return of Products. Risk of loss or damage in respect of any Product returned with Probe’s authorization will remain with Buyer until the Product is received by Probe. Except for Products validly returned under warranty as set out in Section 11, a charge of not less than fifteen percent (15%) of the purchase price or such larger amount as Probe may consider reasonable in the circumstances, with a minimum of $100.00 per Product, will be charged by Probe on all Products returned, in order to pay for cost of inspection, repacking, handling, and accounting for the Product. Probe shall not be responsible for holding or accounting for any Products returned without the required Return Goods Number. If freight and other transportation costs are not prepaid on any returned Product, the cost thereof will be deducted from any credit issued by Probe. No credit will be given on any non-standard Product manufactured at the request of, or to the individual specifications of, Buyer.
7. Other Manufacturer’s Equipment.
(a) If any Product sold to Buyer by Probe contains any parts or Probe from any third party, these parts or materials are sold to Buyer AS IS. AS TO ANY SUCH PARTS OR MATERIALS, PROBE EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. BUYER’S REMEDY FOR ANY FAILURE OR DEFECT IN SUCH PARTS OR MATERIALS IS LIMITED TO REPAIR OR REPLACEMENT AS PROVIDED IN SECTION 11 BELOW. FURTHER, WITH RESPECT TO SUCH THIRD PARTY PARTS OR MATERIALS, PROBE DISCLAIMS LIABILITY FOR ANY PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. Probe has no responsibility or liability whatsoever for such parts or materials, other than to transfer to Buyer any rights capable of transfer that Probe may have received in the parts or materials from the third party.
(b) Connection or attachment of, or use by Buyer of, any Product supplied by Probe with equipment obtained from a source other than Probe, or incorporation of any Product into such equipment, voids Probe’s warranty under Section 11, unless Probe is advised of the type of equipment to be run with the Probe Products and has granted prior approval of compatibility to Buyer in writing. Probe further expressly disclaims all assurances and warranties as to fitness for any specific purpose as regards any such Product.
8. Use and Acceptance of Product. Buyer represents and warrants, by acceptance or use of a Product, that Buyer is familiar with the Product and its proper use and all safety issues attendant thereto. Before using any Product, Buyer shall give the Product reasonable and prudent examination and/or tests to determine the suitability of the Product for Buyer’s intended use. Buyer shall be deemed to have accepted any Product upon Buyer’s use of the Product, or in any event, no later than fifteen (15) calendar days after Buyer’s receipt of the Product unless, before that time, Probe has received from Buyer written notice of any defect or nonconformity from Buyer. Buyer acknowledges that certain Probe Products can, if misused or mishandled, cause significant damage to persons or to property. Buyer shall use the Products in strict accordance with specifications, instructions, and appropriate safety procedures. Any harm or loss caused by Buyer’s failure to use the Products properly and safely shall be the sole responsibility of Buyer, and shall fall within the scope of Buyer’s indemnity of Probe in Section 12 below.
9. Assistance to Customer. At Buyer’s request, Probe may make Probe employees or contractors available to Buyer to train Buyer to operate Products supplied by Probe, or to perform other actions as agreed in writing between Buyer and Probe. Rates for such training and/or Services by Probe employees or contractors shall be agreed to by the parties in writing. If Probe does make any Probe employee or contractor available to Buyer, it is only on the condition that the employees shall be under the sole supervision of Buyer, Buyer shall supply all necessary equipment and supplies for the proper performance of the training or Services performed by the employees or contractors, and Probe shall have no liability whatsoever to Buyer for the Probe employees or contractors during the time that they are under Buyer’s supervision. In addition, Buyer shall be responsible and liable to Probe for any acts or occurrences or omissions of or to the Probe employees or contractors under Buyer’s supervision, and the indemnity of Section 12 below shall apply with respect to all acts of such employees or contractors.
10. Repair of Products. Any repair to any Product supplied by Probe to Buyer effected at Buyer’s request outside normal working hours (8:00 a.m. to 5:00 p.m., U.S. Central time zone Monday through Friday) shall be charged by Probe at double the labor rate otherwise chargeable.
11. Limited Warranty and Remedy.
(a) Buyer’s Remedies are Limited to Repair and Replacement. Buyer’s remedies for any and all breaches of any nature, including without limitation breaches of contract and warranty, are limited to the remedies of repair and replacement as specifically stated in these Terms and Conditions. The remedies provided herein are the exclusive remedies of Buyer for failure of Probe to meet its obligations, whether claims of Buyer are based on contract, in tort, or otherwise, and upon expiration of the applicable warranty period all obligations of Probe with respect to the Products will terminate.
(b) Disclaimer of Warranties Not Expressly Stated. THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS, OR IMPLIED. PROBE EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
(c) Limited Product Warranty. Probe warrants each Product supplied by it to Buyer (excluding any parts or materials that are components of the Product and are subject to Section 7 above concerning parts or materials supplied by others) to be free from defects in materials and workmanship if, and only if, all of the following conditions are met:
(1) The Product claimed to be defective has been exposed only to normal storage, use, and service, has been reasonably maintained, has not been subjected to any misuse, negligent use, or accident that caused the Product to suffer a defect, and has not been repaired or altered except by an authorized representative of Probe;
(2) The Product claimed to be defective has been returned at Buyer’s expense to Probe’s plant at Fort Worth, Texas (or to such other location as Probe may designate), within ten (10) business days after Buyer first discovered the alleged defect;
(3) The alleged defect in the Product is actually caused by a defect in materials or workmanship by Probe as opposed to materials or workmanship originally supplied or provided by another party; and
(4) The Product is not one that is expendable in normal use and that has been expended in normal use.
The above warranty shall remain in effect until six months after shipment to Buyer, except: a) subsurface electronic equipment is warranted only until 90 days after shipment to Buyer; b) scintillation detectors are warranted only to be in working order upon delivery to Buyer; and c) NO SUBSURFACE ELECTRONIC EQUIPMENT IS WARRANTED AGAINST FAILURE, DEFECTS, OR DAMAGE DISCOVERED OR OCCURRING IN CONNECTION WITH DOWN-HOLE DRILLING OPERATIONS.
Any Product that has had its serial number, temperature indicator, or other analytical component altered, defaced, or removed will not be warranted.
(d) Limited Service Warranty. Probe warrants that any Service provided hereunder shall be in conformance with the specifications set forth in the relevant scope of work document agreed to in writing by Probe and Buyer. In the event that the Services do not so conform, then Buyer’s sole remedy shall be for Probe to re-perform that part of the non-conforming Services, provided that Probe is notified thereof by Buyer prior to Probe’s departure from the work site.
(e) Specialty Products and Radioactive Sources. In the event that Probe supplies to Buyer any Product based upon Buyer’s request that Probe develop, produce, test, or put to use any non-standard Probe Product (a “Specialty Product”) so as to satisfy a unique need of Buyer, Buyer acknowledges and agrees that any such Specialty Products may not have or contain the same or similar characteristics as Probe’s standard Products and may not have a historical performance against which such Specialty Product can be measured. In developing, producing, testing, and/or supplying any such Specialty Product, Probe shall be relying upon information and specifications provided by Buyer, and as such Probe shall bear no responsibility for any failure of such Product to meet the specific needs or intended uses of the Buyer. Rather, Probe’s sole warranty with respect to any such Specialty Product shall be limited to warranting that the Product meets the specifications agreed in advance by Probe. Buyer acknowledges that radioactive materials may be used in certain Products supplied by Probe and that such Products are potentially dangerous. Buyer therefore agrees to comply with all applicable government regulations governing the use and handling of the radioactive materials. In the event that any radioactive material becomes stuck in a well, Buyer, at its sole risk and expense will (i) use special precautions to prevent damaging the material during recovery operations, or (ii) if the material cannot be recovered, isolate the radioactive material by cementing it in place or by other means consistent with applicable government regulations.
(f) Limited Remedies Available Under Warranty. Except as otherwise provided above, Probe’s liability under the above-described limited warranty shall be limited to the repair or replacement of the Products sold hereunder. Probe will repair or replace the Product at no cost to Buyer, but the decision as to whether to repair or replace will be solely that of Probe.
Repairs or replacement Products are only warranted for the remaining unexpired portion of the warranty period. The Buyer acknowledges and agrees that the remedies set forth in this Section 11 shall be the Buyer’s sole and exclusive remedy against Probe, and that Probe shall have no liability or responsibility whatsoever to Buyer for any claim or losses of any nature, except as set forth in this Section. The Buyer shall not be able to avoid the limitations expressly set forth in this Agreement by electing to pursue some other remedy, whether in tort or otherwise.
(g) Notice of Claims Required. All claims under the warranty set out in this agreement must be made promptly after the alleged defect occurs or comes to light and must be received by Probe within the warranty period. The claim must include the Product’s description, part number, serial number (if any), date of shipment or delivery, and a full description of the circumstances giving rise to the claim. Any Product returned under claim of defect shall be sent prepaid by appropriate transportation. Buyer is responsible for all damage or loss resulting from improper packing or handling, and for any loss or damage occurring during the transmission of the Product to Probe. If any Product is returned and is found not to be defective, Probe will notify Buyer and, at Buyer’s option, will return the Product to Buyer at Buyer’s expense, and Buyer shall reimburse Probe for all costs incurred in testing and examining the Product.
12. INDEMNITY, DEFENSE, AND RELEASE BY BUYER. EXCEPT TO THE EXTENT CAUSED BY PROBE’S SOLE NEGLIGENCE, BUYER AGREES TO RELEASE, UNCONDITIONALLY INDEMNIFY, DEFEND AND HOLD HARMLESS PROBE, ITS EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, INVITEES, SUBSIDIARIES, AFFILIATES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “PROBE INDEMNIFIED PARTIES”), AGAINST ALL LIABILITY, COSTS, EXPENSES, CLAIMS (INCLUDING INJUNCTIONS, SUBPOENAS, AND OTHER COURT ORDERS, AND ALL GOVERNMENTAL INQUIRIES AND INVESTIGATIONS OF ANY SORT), DAMAGES, LOSSES (INCLUDING LIABILITY TO ANY THIRD PARTY IN RESPECT OF PROPERTY LOSS OR DAMAGE OR INJURY OR DEATH OF PERSONNEL), JUDGMENTS, AND AWARDS (COLLECTIVELY, “LOSS”) THAT ANY PROBE INDEMNIFIED PARTY MAY AT ANY TIME SUFFER OR SUSTAIN AS A DIRECT OR INDIRECT RESULT OF THE BUYER’S PURCHASE, USE, OR RESALE OF ANY PRODUCT OR SERVICES SUPPLIED BY PROBE HEREUNDER (EXCEPT FOR COSTS ASSOCIATED WITH THE LIMITED WARRANTY PROVIDED BY PROBE PURSUANT TO SECTION 11 HEREOF), EVEN IF SUCH LOSS IS CAUSED BY STRICT LIABILITY OR THE JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OF PROBE OR ANY PROBE INDEMNIFIED PARTY.
NOTWITHSTANDING ANY OTHER PROVISION HEREIN TO THE CONTRARY, BUYER SHALL DEFEND AND INDEMNIFY PROBE AND ANY PROBE INDEMNIFIED PARTY, IN EACH AND EVERY CASE, AGAINST ANY LOSS OR DAMAGE (INCLUDING LIABILITY TO ANY THIRD PARTY IN RESPECT OF PROPERTY LOSS OR DAMAGE OR INJURY OR DEATH OF PERSONNEL), EVEN IF THE LOSS OR DAMAGE IS DUE TO STRICT LIABILITY OR THE SOLE, JOINT, COMPARATIVE, OR CONCURRENT NEGLIGENCE OF PROBE OR ANY PROBE INDEMNIFIED PARTY, IN RESPECT OF THE FOLLOWING:
(I) LOSS OF OR DAMAGE TO THE WELL (INCLUDING CASING AND ASSOCIATED MATERIALS AND SERVICES), ANY SUBSURFACE GEOLOGICAL FORMATION OR STRATA AND LOSS OF ANY OIL OR GAS;
(II) BLOWOUT, CRATERING, FIRE, EXPLOSION AND/OR KILLING OR CONTROL OF ANY WELL WHICH SHALL BECOME OUT OF CONTROL FOR ANY REASON, INCLUDING BUT NOT LIMITED TO DEBRIS REMOVAL; AND
(III) POLLUTION AND ITS REMOVAL AND CLEAN-UP (OTHER THAN SURFACE SPILLAGE OF FUELS, LUBRICANTS, RIG SEWAGE, GARBAGE OR WASTE MATERIAL IN PROBE’S POSSESSION AND CONTROL TO THE EXTENT ATTRIBUTABLE TO THE SOLE NEGLIGENCE OF PROBE).
IN NO EVENT SHALL PROBE OR ANY PROBE INDEMNIFIED PARTY BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY PUNITIVE DAMAGES OR FOR ANY INCIDENTAL,INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, ANY LOSS OF GOODWILL, LOSS OF USE, LOSS OF PROFITS OR LOSS OF PRODUCTION. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, THE LIABILITY OF PROBE OR ANY PROBE INDEMNIFIED PARTY FOR ANY LOSS, (WHETHER BY REASON OF ANY BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, OR OTHERWISE AND IRRESPECTIVE OF THE STRICT LIABILITY OR NEGLIGENCE (I.E. SOLE, JOINT, COMPARATIVE OR CONCURRENT) OF PROBE OR ANY PROBE INDEMNIFIED PARTY) SHALL IN NO EVENT EXCEED THE PAYMENT, IF ANY, RECEIVED BY PROBE FOR ANY PRODUCT OR SERVICE PROVIDED BY PROBE HEREUNDER. MOREOVER, BUYER AGREES TO RELEASE, INDEMNIFY AND HOLD PROBE OR ANY PROBE INDEMNIFIED PARTY HARMLESS FROM AND AGAINST ANY LOSS IN EXCESS OF SUCH PAYMENT RECEIVED BY PROBE. BUYER FURTHER AGREES TO PROVIDE SUFFICIENT INSURANCE (OR SHALL SELF-INSURE) FOR THE BENEFIT OF EACH OF THE PARTIES HERETO AS SHALL BE NECESSARY TO PROTECT BOTH BUYER, PROBE OR ANY PROBE INDEMNIFIED PARTY FROM ANY SUCH LOSS AS ALLOCATED PURSUANT TO THE PROVISIONS OF THIS PARAGRAPH. Upon written request, each party shall furnish to the other party certificates of insurance evidencing the fact that adequate insurance to support each party’s obligations hereunder has been secured.
13. Export Transactions: Compliance with United States Law.
(a) Notwithstanding any other provision contained in these Terms and Conditions to the contrary, in the case of an order for any Product for delivery to an ultimate destination outside the United States, Buyer agrees and accepts that:
(1) Buyer shall at the time of order, without request from Probe, give notice in writing to Probe, stating the country of ultimate destination (“Ultimate Destination Country”) of the Product and the name and address of the end user in the Ultimate Destination Country; and
(2) Buyer shall comply with all terms and conditions of all required export and other licenses (including license exceptions) (“Licenses”) including, without limitation, regarding export, re-export, and transshipment; and
(3) Probe is authorized to disclose to any lawful governmental authority with jurisdiction over the transaction subject hereto the details of any Product to be supplied by Probe to Buyer; and
(4) Buyer shall not re-export any Product from the Ultimate Destination Country without the prior written consent of Probe; and
(5) Buyer shall, at Probe’s request, provide representations and undertakings in writing in such form as Probe may require relating to the Ultimate Destination and end user of all Products and confirming acceptance and observance of all the provisions of this Section 13.
Acceptance of any order for any Product to which this Section 13 applies, and any contract or agreement relating thereto, shall be subject to and be deemed to include the condition that it is conditional upon all such Licenses being granted. Notwithstanding the terms of the preceding sentence, in the event of any such License: (1) being denied, Buyer shall be deemed to have cancelled the order; or (2) being issued in terms not acceptable to Buyer and Buyer canceling the order, Section 6(b) hereof shall apply.
(b) Notwithstanding any other provision contained in these Terms and Conditions, Probe reserves the right, in respect of any order for any Product ostensibly for delivery to an ultimate destination in the U.S., to require Buyer to make a declaration in such form as Probe may require representing that the ultimate destination of the Product is within the U.S.; and in the event that Buyer refuses or unreasonably delays in making such declaration in a timely manner, Probe reserves the right to treat Buyer as having cancelled such order, in which event Section 6(b) hereof shall apply.
(c) Buyer represents that, to the best of its knowledge, no illegal Inducement was offered or given by any party in connection with the sale of Products or Services hereunder, and that no illegal inducements shall be paid by Buyer (or by any third party on Buyer’s behalf) in connection with any resale of the Product by Buyer, or in connection with the sale by Buyer of any services in connection with which the Product is used.
Any breach by Buyer of the representations set forth in this Section 13(c) shall entitle Probe to release, defense, and indemnification under Section 12 hereof. For the purposes of this Section 13(c), an “Inducement” shall mean anything of value offered or given in order to influence business decisions made by the recipient in connection with the purchase of the Product or Services, or the purchase of services from Buyer in which the Products are used; provided, however, that an Inducement shall not include legitimate business expenses, or hospitality gifts of nominal value, the offer or giving of which in either case is legal under all the law applicable in the jurisdiction where made.
(d) Notwithstanding any other trade terms or conditions agreed with Probe in any communication with Buyer, under no circumstances shall Probe accept any conditions, terms of trade, course of dealing, or business arrangement that could constitute participation in or acceptance of any trade boycott of a third country, except such embargoes as are mandated by applicable US law.
14. Intellectual Property Rights of Probe. Under no circumstances shall the sale of any Product hereunder transfer any intellectual property rights from Probe to Buyer, regardless of whether Probe has designed, configured, engineered, or manufactured any Product or delivered any Service specifically to Buyer’s specifications. Buyer expressly acknowledges that any design, engineering, technical work, or other intellectual property of any kind developed by Probe in connection with meeting any order from Buyer or supplying any Product or Service to Buyer shall constitute Probe’s proprietary data and shall be solely Probe’s intellectual property, and Buyer shall have no ownership or license rights with respect to any such intellectual property except as may be agreed by Probe in writing.
15. Confidentiality. All data, designs, drawings, specifications, and other information, revealed or disclosed in any form or manner to Buyer by Probe, including but not limited to any detail or feature of any Product or part thereof, whether written, oral, electronic, visual, graphic, photographic, observational, or otherwise, and documents supplied to, or produced or created by, Probe hereunder (collectively defined as “Information”) will be held in strict confidence by Buyer. This confidentiality obligation shall not apply to any data given freely by Probe to prospective customers (for example, in product brochures or on Probe’s website). All such Information will be treated and protected by Buyer as strictly confidential and will not be disclosed to any third party without the prior written consent of Probe and may be disclosed within Buyer’s organization only on a need-to-know basis. At Probe’s request, Buyer will immediately return to Probe any Information provided to, or produced or created by, Probe, including all copies of Information made by Buyer in tangible form, and Buyer shall certify to Probe in writing that Buyer has deleted the Information from all electronic storage media on which it was placed by Buyer. The foregoing obligations shall not apply to any information which (i) is publicly known or becomes publicly known through no fault of or disclosure by Buyer; (ii) is given to Buyer by someone other than Probe as a matter of right and without restriction of disclosure; (iii) was known to the Buyer prior to the acceptance of these Terms and Conditions; or, (iv) is legally compelled to be disclosed. If Buyer receives a subpoena, order, notice, process or other legal process seeking disclosure of Probe’s Information, Buyer shall immediately notify Probe in order to allow Probe the opportunity to oppose the order, notice, or process, or seek a protective order. If requested by Probe, Buyer shall cooperate fully with Probe in contesting such disclosure. Except as such demand shall have been timely limited, quashed or extended, Buyer may thereafter comply with such demand, but only to the extent required by law. Where Probe obtains a protective order, nothing in these Terms and Conditions shall be construed to authorize Buyer to use in any manner or disclose Probe’s Information to parties other than such governmental or judicial agency or body or beyond the scope of the protective order. Disclosures that are made to Buyer under these Terms and Conditions which are specific shall not be deemed to be within the foregoing exceptions merely because they were embraced by general disclosures that are either in the public domain or in the possession of Buyer. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of Buyer, but only if the combination itself and its principle of operations are in the public domain and in the possession of Buyer.
16. General.
(a) Order confirmation or acceptance by Probe as to any Product or Service shall constitute Probe’s offer to supply the same only in accordance with these Terms and Conditions. Buyer’s acceptance of Probe’s quotation, tender, or offer shall be subject to these Terms and Conditions. Any purported acceptance of a Probe offer by Buyer under terms that vary from, conflict with, or modify these Terms and Conditions shall not be effective. Neither Probe’s commencement of performance under these Terms and Conditions nor Probe’s delivery of any Product shall be deemed to constitute acceptance by Probe of any term that varies from, conflicts with, or modifies these Terms and Conditions, regardless of whether such varying terms by Buyer are set out in any acknowledgment, order, or other document of Buyer.
(b) Acceptance of any Product or Service by Buyer shall constitute acceptance of, and is limited to, these Terms and Conditions. Notice of objection is hereby given to any term, provision, or condition of Buyer that modifies or conflicts with these Terms and Conditions.
(c) Probe recognizes that Buyer may, for operating convenience, desire to utilize its own forms in connection with an order, and, in such case, any term, condition, or provision in such form that modifies, conflicts with, or is added to these Terms and Conditions shall be deemed to waived by Buyer unless accepted in writing by an officer of Probe.
(d) Unless and to the extent altered or amended by an instrument in writing signed by Probe and Buyer, (i) these Terms and Conditions constitute the entire agreement of Probe and Buyer with respect to the Product or Service, and contain all of the covenants and agreements of Probe and Buyer with respect thereto; (ii) Buyer acknowledges that no representations, promises, or agreements, oral or written, have been made by Probe or anyone acting on behalf of Probe, which are not contained herein; and (iii) any prior agreements, promises, negotiations, or representations not expressly set forth in these Terms and Conditions are of no force or effect. These Terms and Conditions may not be altered or amended except by an instrument in writing signed by Probe and Buyer.
(e) Failure by Probe to enforce any or all of these Terms and Conditions in any case or cases shall not constitute a waiver of or preclude subsequent enforcement of any or all of such Terms and Conditions.
(f) Any attempted or purported assignment or transfer by Buyer of any of the rights or obligations contained herein shall render such attempted or purported assignment or transfer null and void. Probe may perform and fulfill all or any of its obligations hereunder by or through any subsidiary or affiliate.
(g) If any provision of these Terms and Conditions is capable of more than one construction, the provision shall be interpreted in the manner that will render it valid. If any provision hereof is determined to be void, the determination shall not affect any other provision and all other provisions not construed to be void shall remain in full force and effect.
17. Arbitration. ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THE TRANSACTION SUBJECT TO THESE TERMS AND CONDITIONS, OR REGARDING THE BREACH, TERMINATION, OR INVALIDITY THEREOF, SHALL BE FINALLY SETTLED BY BINDING ARBITRATION IN ACCORDANCE WITH THE UNCITRAL ARBITRATION RULES AS AT PRESENT IN FORCE. The appointing authority, should one be needed, shall be the American Arbitration Association. The language of the arbitral proceeding shall be English. The place of arbitration shall be Dallas, Texas. Judgment on the award may be entered by any court of competent jurisdiction. Notwithstanding the foregoing, Probe shall, in order to protect its proprietary and intellectual property rights hereunder, have the right to seek preliminary, injunctive, or other equitable relief from any court with jurisdiction over the Buyer; provided, however, that such court shall have no authority to issue any judgment for monetary damages, which authority shall be reserved solely to an arbitral panel proceeding in accordance with this Section 17.
18. Limited Statue of Limitations. AS PERMITTED BY THE TEXAS BUSINESS AND COMMERCE CODE, §2.725(a), THE STATUE OF LIMITATIONS FOR ANY BREACH OF CONTRACT RELATIVE TO THE SALE OF ANY ITEM PURSUANT TO THESE TERMS AND CONDITIONS SHALL BE ONE YEAR FROM THE DATE THE CAUSE OF ACTION ACCRUES.
19. No Authority of Seller’s Agents. No agent or representative of Probe has any authority to bind Probe to any affirmation, representation, or warranty concerning the Products except as may be stated herein, nor shall any agent of representative have any authority to alter any term thereof except as may be approved in writing by an officer of Probe.
20. Choice of Law. Any agreement or transaction to which these Terms and Conditions apply shall be deemed to have been made in the State of Texas. These Terms and Conditions shall be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Texas. The UN Convention on Contracts for the International Sale of Goods shall not apply.
