Terms and Conditions

RMS ENERGY CO, LLC’s GENERAL TERMS AND CONDITIONS OF SALE

These General Terms and Conditions of Sale (these “Terms”) and the non-conflicting provisions in any service contract, statement of work, work order, purchase order (or other similar ordering document) (each, an “Order”) quotation, acknowledgement or invoice (collectively, with these Terms the “Agreement”) from RMS Energy, LLC a Delaware limited liability company (or such other RMS-affiliated selling entity identified as the contracting seller in the applicable Order or quotation, including, where the Order relates primarily to manufactured or fabricated equipment, RMS Equipment Solutions, LLC), together with its Affiliates, (“Seller”), govern in all respects the provision of services by Seller (“Services”) and any sales of any products (collectively, “Products”) from Seller to the purchaser of such Products or Services (“Buyer”) as set forth in the applicable Order. By executing or submitting an Order and/or taking receipt of any Products or Services, Buyer expressly agrees to this Agreement. In the event of a conflict between these Terms and an Order or any other ordering document issued by Buyer, these Terms shall prevail unless and to the extent expressly agreed otherwise in writing by Seller.

As used herein, “Affiliate” means, with respect to Seller, any entity that directly or indirectly controls, is controlled by, or is under common control with Seller, where “control” means ownership of more than fifty percent (50%) of the voting equity interests of an entity or the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract, or otherwise.

1. Prices and Taxes.

Prices and applicable rates for Services and Products shall be those set forth in a quotation provided by Seller, provided that if Seller commences performance of Services or delivers Products prior to the issuance of a quotation or execution of an Order, Buyer shall be responsible for paying Seller’s rates and fees for such Services or Products as reasonably determined by Seller based on the scope of work performed, and such commencement shall not be construed as a waiver of Seller’s right to require a duly executed quotation or Order. Seller may accept or reject Orders for Products in its sole discretion and Buyer must accept quotations executed or acknowledged by Seller prior to the expiration date indicated on such quotation; provided, that unless otherwise specified therein, quotations shall remain valid for thirty (30) days from the date of issuance or until Seller commences work under the applicable Order, whichever occurs first. Buyer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind (“Taxes”) imposed by any federal, state, or local governmental entity on any amounts payable by Buyer hereunder. If a quotation or Order identifies a deposit, such deposit shall be due and payable in full before Seller has any obligation to commence work, procure materials, manufacture Products, reserve manufacturing or service capacity, mobilize, or otherwise provide Services, and Seller shall have no obligation to incur any procurement, manufacturing, or other costs in advance of Seller’s receipt of any required deposit. Seller’s prices are based on costs, tariffs, duties, and other charges in effect as of the date Seller establishes its pricing. Seller may increase the price of any Products or Services, notwithstanding the issuance of any Order, quotation, or acceptance thereof, to pass through to Buyer the amount of any new or increased tariffs, duties, customs charges, import or export charges, or other governmental assessments imposed or increased after such date, as well as any material increase in the cost of commodities, raw materials, components, freight, transportation, labor, or other third-party costs outside of Seller’s reasonable control. Seller shall provide Buyer with reasonably prompt written notice of any such price adjustment, and Buyer shall remain obligated to pay the adjusted price for the applicable Products or Services.

2. Prevailing Wage; Regulatory Labor Requirements.

Buyer shall disclose to Seller, prior to Seller’s issuance of any quotation, all applicable prevailing-wage, Davis-Bacon Act, Inflation Reduction Act, certified-payroll, apprenticeship, labor-compliance, or similar governmental requirements applicable to the Products or Services to be provided (collectively, “Labor Compliance Requirements”). Seller’s pricing is based solely on the Labor Compliance Requirements, if any, disclosed by Buyer at the time of quotation. If Buyer fails to disclose applicable Labor Compliance Requirements, or if any Labor Compliance Requirements are imposed or modified after the date of Seller’s quotation, and such requirements increase Seller’s costs of performance, Seller may charge Buyer for the resulting additional labor, administrative, compliance, and other costs, and Seller shall be entitled to a corresponding equitable adjustment to the applicable schedule.

3. Payment Terms.

Except as otherwise expressly stated in an Order executed or accepted by Seller, the terms of payment are net 30 days from date of the applicable invoice, subject to Seller’s review and approval of Buyer’s credit. All prices are quoted, and must be paid, in United States dollars, or as otherwise specified on the quotation. Unless otherwise directed by Seller, payments must be made by credit card, check, or ACH. In the event that undisputed payments are not properly received by Seller in accordance with this Section 3, Seller may: (a) charge interest on any such unpaid amounts at a rate of 1½% per month, or the maximum amount permitted by law; and (b) suspend performance for all Services until payment has been made in full. Buyer shall be liable and reimburse Seller for all reasonable costs of collection, including, without limitation, applicable attorneys’ and collection agency fees.

4. Delivery and Shipping Terms; Inspection and Acceptance (Products).

Unless otherwise expressly stated in the applicable Order or mutually agreed by the parties in writing, Seller shall select the method of shipment and applicable delivery terms, including the carrier for Products, and the delivery location (the “Delivery Location”) shall be as set forth in the applicable Order (as accepted by Seller). Buyer shall appoint an authorized representative to accept and acknowledge receipt of Products at the time of delivery at the Delivery Location, including signing either electronically or in writing, confirmation of receipt. Buyer may export, re-export or transfer, directly or indirectly, Products only in compliance with all applicable shipping laws. All shipping dates stated in an Order are estimates only and not guaranteed by Seller unless Seller has expressly agreed in writing that a specific date is firm. Seller shall not be liable for any delay in, or failure of, shipment, manufacturing, mobilization, or performance resulting from Buyer delay, supplier or manufacturer delay, unavailability of materials, transportation delay, governmental action, a Force Majeure Event (as defined in Section 11), or other causes outside of Seller’s reasonable control. Title to Products will pass to Buyer upon Buyer’s full satisfaction of its payment obligations for the applicable Products. Shipping terms for Products shall be Ex Works (EXW) Seller’s facility (Incoterms 2020) unless a different Incoterm is expressly specified in the applicable Order or quotation. Title, risk of loss, and responsibility for freight, insurance, and delivery obligations shall be allocated between Seller and Buyer consistently with the applicable Incoterm. Buyer shall inspect Products within three (3) business days of receipt of such Products (the “Product Inspection Period”). If such Products do not comply with the specifications of the Order (“Nonconforming Products”), Buyer shall give written notice to Seller prior to expiration of the Product Inspection Period. Buyer will be deemed to have accepted Products unless it provides Seller with written notice of any Nonconforming Products (stating with specificity all defects and nonconformities) within the Product Inspection Period. If Seller determines that such Products are Nonconforming Products, Seller shall, in its sole discretion, either: (a) replace such Nonconforming Products with conforming Products; or (b) refund to Buyer such amount paid by Buyer to Seller for such Nonconforming Products returned by Buyer to Seller. Seller will pick-up or arrange for shipment by a third-party carrier all Nonconforming Products. If Seller exercises its option to replace Nonconforming Products, Seller shall ship to the Delivery Location, at Seller’s expense and risk of loss, replacement Products. THE REMEDIES SET FORTH IN THIS SECTION 4 ARE BUYER’S EXCLUSIVE REMEDY AGAINST SELLER FOR THE DELIVERY OF NONCONFORMING PRODUCTS.

5. Cooperation; Inspection and Acceptance (Services).

Buyer shall: (a) cooperate with Seller in all matters reasonably relating to the provision of Services hereunder; (b) provide Seller with access to Buyer’s premises as requested by Seller; (c) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the Agreement; (d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to Services prior to the date upon which Services are rendered. If Seller’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay. With respect to any Deliverables (as defined herein) delivered or Services performed under the Agreement, Buyer shall have 14 calendar days to inspect Deliverables or Services after performance is complete (the “Services Inspection Period”). If Buyer elects not to accept a Deliverable or any Services during the Services Inspection Period, Buyer must provide written notice to Seller, which notice must specify in reasonable detail the reasons that Buyer believes that Deliverables and/or Services fail to meet the requirements in the Agreement. Within 14 calendar days of receipt of such notice and confirmation by Seller of the nonconformance of any Deliverables and/or Services, or as soon as commercially practicable, Seller will commence correction of such Deliverables and/or Services and thereafter diligently pursue completion, and re-submit Deliverables or re-perform Services for Buyer’s review and acceptance. Buyer will be deemed to have accepted the corrected Deliverables or Services upon the first to occur of (i) the passage of 7 calendar days following the date on which Seller notifies Buyer in writing that Deliverables and/or Services have been corrected without Seller’s receipt of notice of non-acceptance by Buyer, or (ii) use by Buyer of the corrected Deliverables and/or Services. Acceptance by Buyer shall not be unreasonably withheld.

6. Change Orders.

If either party requests a change in any of the specifications, requirements, customizations, Products, Deliverables, or Services described in the applicable Order, the party seeking the change shall propose the applicable changes by written notice. Seller will prepare a change order describing the proposed changes to the applicable Order and the applicable change in fees and expenses, if any (each, a “Change Order”). Change Orders are not binding unless and until they are executed by both parties. Executed Change Orders shall be deemed part of, and subject to, the Agreement.

Notwithstanding the foregoing, a Change Order shall be deemed effective upon Seller’s commencement of the work described therein, regardless of whether such Change Order has been fully executed by both parties. If Seller commences work reflecting a proposed change prior to the execution of a formal Change Order, Buyer shall be responsible for paying Seller’s standard rates and fees for such work, and Seller’s commencement of such work shall not be construed as a waiver of Seller’s right to a duly executed Change Order or any of Seller’s other rights under this Agreement.

7. Customer-Caused Delay; Suspension.

If Buyer delays, suspends, interferes with, or otherwise prevents Seller’s performance under the Agreement, Seller shall be entitled to an equitable adjustment to the schedule and price, including, without limitation, compensation for remobilization and demobilization costs, storage costs, labor inefficiency, cost escalation, and any other costs or expenses resulting from such delay, suspension, interference, or prevention. Any revised schedule following a suspension or delay caused by Buyer shall be subject to Seller’s then-current availability at the time performance resumes, and Seller shall have no obligation to resume performance in accordance with the original schedule.

8. Ownership Rights; Deliverables (Services).

Seller, including its Affiliates, (or its third-party licensors, as applicable) is and shall at all times remain the sole and exclusive owner of all rights title and interest in and to all copyrights, moral rights, patents, inventions, ideas, concepts, know-how, trade secrets, methods, techniques and technical data, engineering, sketches, models, data, software, codes, analytics, processes, formulae, dossiers, descriptions, specifications, documentation and any other intellectual property rights (and all associated goodwill), and any enhancements, derivations or modifications to any of the foregoing (“Intellectual Property”) owned, licensed or developed by Seller or its third-party licensors at any time, including in connection with this Agreement. Buyer shall remain the owner of all Intellectual Property rights of Buyer existing prior to the effective date of this Agreement or independently of this Agreement and any Buyer-provided materials or specifications (“Buyer IP”). To the extent Seller provides or develops any deliverables, work product or similar materials (“Deliverables”) on behalf of Buyer under this Agreement or any Order, Seller shall be the sole and exclusive owner of such Deliverables and all Intellectual Property rights therein (except to the extent any any Buyer IP is incorporated therein). Subject to Buyer’s full satisfaction of its payment obligations hereunder, Seller hereby grants to Buyer a perpetual, non-exclusive, limited, non-transferable and non-sublicensable license to use the Deliverables for its internal business purposes in accordance with this Agreement. Buyer hereby grants to Seller a non-exclusive, limited, royalty-free license to use Buyer IP in connection with this Agreement, including providing the Services and Deliverables hereunder.

9. Warranties; Disclaimers.

(a) Seller Warranty. Seller warrants that it has the right to enter into this Agreement and deliver the Products or Services, as applicable, to Buyer under this Agreement. Seller represents and warrants to Buyer that it shall perform Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under the Agreement. Seller further warrants that Services shall be free from defects in workmanship and performed in accordance with this Agreement, and that any Products designed, manufactured, or fabricated by Seller (as opposed to third-party Products described below) shall be free from defects in design, materials, and workmanship. Such warranty shall remain in effect for a period of one (1) year following Buyer’s acceptance of the applicable Products or completion of the applicable Services, during which time Seller shall, at its sole cost and expense, promptly repair, replace, or re-perform any defective Products or Services upon Buyer’s notice. With respect to any Products, components, or equipment supplied by Seller but manufactured by a third party (“Third-Party Products”), Seller does not independently warrant such Third-Party Products; Seller’s sole obligation with respect to Third-Party Products is to assign or pass through to Buyer, to the extent assignable, the applicable manufacturer’s warranty, and to provide Buyer with reasonable assistance in submitting and administering warranty claims directly with the applicable manufacturer.

(b) Buyer Warranty. Buyer warrants to Seller that (i) it has all necessary rights, permissions and authorizations to enter into this Agreement and provide any Buyer IP or other Buyer-provided materials to Seller hereunder, and (ii) all Buyer IP and Buyer-provided materials shall comply with applicable laws and shall not infringe or misappropriate the intellectual property rights of a third party.

(c) Buyer Acknowledgments. Buyer is solely responsible for determining the fitness and suitability of Products and Deliverables for the use contemplated by Buyer. Buyer shall ensure that (i) the Products and any Deliverables are used only for the purposes and in the manner for which they were designed and supplied, (ii) all persons likely to use or come into contact with the Products or Deliverables receive appropriate training and copies of applicable instructions and documentation supplied by the manufacturer, (iii) all third parties who use or may be affected by or rely upon the Products or Deliverables are given full and clear warning of any hazards associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with, and (iv) any warning notices displayed on the Products or Deliverables are not removed or obscured. Buyer assumes all responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Products or Deliverables, either alone or in combination with other Products or components.

THE WARRANTIES SET FORTH IN THIS SECTION 9 ARE SELLER’S SOLE AND EXCLUSIVE WARRANTIES IN CONNECTION WITH THIS AGREEMENT, AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, INFRINGEMENT; TITLE, NONCONFORMITIES, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, USAGE OF TRADE, AND FITNESS FOR A PARTICULAR PURPOSE. ALL PRODUCTS, SERVICES AND DELIVERABLES ARE PROVIDED AS-IS AND WITH ALL FAULTS. EXCEPT AS PROVIDED IN SECTION 3, THE REMEDIES PROVIDED IN THIS SECTION 9 ARE BUYER’S SOLE REMEDIES FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO PRODUCTS. All warranty claims against the applicable manufacturer must be submitted to Seller on or before the end of the applicable warranty period for processing by Seller.

(d) Customer Indemnity. Buyer shall indemnify, defend, and hold harmless Seller, its Affiliates, and their respective officers, directors, employees, and agents from and against any and all third-party claims, demands, actions, liabilities, losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) any specifications, designs, data, materials, or intellectual property provided by Buyer to Seller; (b) Buyer’s misuse, modification, or unauthorized use of any Products or Deliverables; (c) Buyer’s negligence or willful misconduct; or (d) Buyer’s breach of applicable law or of this Agreement. This indemnification obligation is in addition to, and shall not limit, any of Seller’s rights or protections under this Agreement, including the limitations of liability set forth in Section 10.

10. Limitation of Liability.

To the extent permitted by law, Seller’s total aggregate liability under the Agreement, under any theory of liability (including without limitation negligence, breach of contract, indemnification or strict liability), shall not exceed: (a) with respect to Products, the value of the specific, related Purchase Order (“PO”) giving rise to the claim, specifically the price paid by Buyer under the applicable Order for the Product giving rise to the claim, or (b) with respect to Services, the value of the specific, related PO giving rise to liability hereunder, specifically the amounts paid by Buyer to Seller under such PO. In no event shall Seller’s liability extend to or be measured by the value of this Agreement as a whole or any other Order or PO. Under no circumstances shall Seller be liable for any special, incidental, indirect, punitive or consequential damages, including without limitation, loss of profits, business or reputation, business interruption or loss of use, or data under any theory of liability and whether or not Seller was advised of the possibility of such damages. Any action arising under or relating to the Agreement, (under any theory of liability), must be commenced within one year after the date of delivery of Products or performance of Services. Seller has set its prices and entered into the Agreement in reliance upon the limitations of liability and other terms and conditions specified herein, which allocate the risk between Buyer and Seller and form a basis of this bargain between the parties.

11. Excused Performance.

Neither party shall be considered in default of its performance of any obligation under the Agreement (other than an obligation to make any payment due under the Agreement) to the extent that performance of such obligation is prevented or delayed by acts of God; war (declared or undeclared); terrorism or other criminal conduct; fire; flood; weather; sabotage; strikes, or labor or civil disturbances; epidemics, pandemics, COVID-19 or other public health emergencies, and any quarantines or governmental restrictions related thereto; supply-chain disruptions, shortages, or transportation disruptions; governmental requests, restrictions, laws, regulations, orders, omissions or actions; unavailability of, or delays in, utilities, materials, labor, or transportation; or any other events or causes beyond Seller’s reasonable control or other cause beyond such party’s reasonable control, (each, a “Force Majeure Event”). Deliveries of Products or performance of Services may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of a Force Majeure Event, but the remainder of the Agreement will otherwise remain unaffected as a result of the Force Majeure Event. For the avoidance of doubt, if a Force Majeure Event prevents Seller from conducting a site visit to Buyer’s premises or from otherwise obtaining any requested information under Section 5 herein, any corresponding delays in performance by Seller shall be excused under this Section 11 and shall not constitute a breach of the Agreement. Any corresponding shifts in dates of delivery or performance of Services resulting from a Force Majeure Event shall entitle Seller to a reasonable extension of time to perform, and, at Seller’s option, may be reflected in a duly executed Change Order, as specified in Section 6 herein.

12. Confidential Information.

Each party hereto may be given access to non-public, confidential or proprietary information, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”) from the other party in order to perform its obligations under the Agreement. Confidential Information shall not include information that is or becomes publicly known other than through any act or omission of the receiving party; was in the receiving party’s lawful possession before the disclosure by the disclosing party; is lawfully disclosed to the receiving party by a third party without restriction on disclosure; is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, which independent development can be shown by written evidence; or is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. The receiving party shall hold the disclosing party’s Confidential Information in strict confidence and, unless required by law or following written consent from the disclosing party, not make the disclosing party’s Confidential Information available to any third party. If the receiving party is required by law, rule, or regulation to disclose any of the disclosing party’s Confidential Information, the receiving party shall, to the extent permitted by law, provide the disclosing party with prompt written notice of each such request and reasonably cooperate with the disclosing party’s efforts to seek an appropriate protective order or waive compliance with the provisions of the Agreement or both. This Section 12 shall survive termination of the Agreement. Within ten (10) days following termination of the Agreement, the receiving party shall deliver or destroy any copies of the disclosing party’s Confidential Information in written or other tangible or intangible form along with any copies, reproductions, and summaries thereof, together with a certificate executed by the receiving party certifying the delivery or destruction of all such materials.

13. Termination.

In addition to any remedies that may be provided under the Agreement, Seller may terminate the Agreement or any Order hereunder with immediate effect upon written notice to Buyer if Buyer: (a) fails to pay any undisputed amount when due under the Agreement; (b) has not otherwise performed or complied with any of the terms of the Agreement, in whole or in part, and does not remedy such noncompliance within 30 days of written notice from Seller detailing the noncompliance; or (c) 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.

14. Safety Incident; Regulatory Disclosure.

In the event of a safety incident relating to any Products or Services provided by Seller, Seller shall have a right of first refusal and/or the right to review and edit any information relating to Seller’s jobs prior to disclosure of such information to any regulatory or governmental body. Buyer shall notify Seller promptly, and in any event prior to making any such anticipated disclosure, of any request or requirement to disclose such information so that Seller may exercise its rights under this Section.

15. Assignment; Change of Control.

Seller may assign, transfer, or delegate this Agreement or any Order, in whole or in part, without Buyer’s consent, including in connection with a merger, reorganization, consolidation, or sale of all or substantially all of the assets or equity of Seller to which this Agreement relates. Buyer shall not assign, transfer, or delegate this Agreement or any Order, nor permit any change of control affecting Buyer’s obligations under this Agreement, without Seller’s prior written consent, which consent shall not be unreasonably withheld. Any purported assignment, transfer, delegation, or change of control in violation of this Section shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.

16. Dispute Resolution

In the event a claim, dispute or controversy arises out of or in connection with the Agreement, the parties agree to attempt to resolve the claim, dispute, or controversy by conducting good faith negotiations. If the parties are unable to settle the matter between themselves within 30 days, the dispute shall thereafter be resolved by binding arbitration administered by JAMS pursuant to its then-current Comprehensive Arbitration Rules and Procedures. The arbitration will be conducted in English at a mutually agreed upon location in the State of Delaware. The parties hereby waive any claim of forum non conveniens. Notwithstanding any provision of the Agreement relating to which state laws govern the Agreement, all issues relating to arbitrability or the enforcement of the agreement to arbitrate contained herein shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) and the federal common law of arbitration.

17. General Provisions.

The Agreement constitutes the entire agreement between the parties and supersedes all other communications between the parties relating to the subject matter of the Agreement. Seller’s quotations are offers that may only be accepted in full. No conditions, usage or trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, reject, or supplement the Agreement shall be binding unless made in writing and signed by both parties, expressly and specifically referencing the Agreement, and no modification or objection shall be caused by Seller’s receipt, acknowledgment, or acceptance of Orders, shipping instruction forms, or other documentation containing different or additional terms to those set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver is expressed in a writing signed by both parties, specifically referencing the Agreement. By submitting an Order for Products or Services, as applicable, Buyer consents to do business and receive communications, receipts and notices from Seller in connection with this Agreement electronically, at Seller’s option. If Buyer gives Seller an incorrect email address or fails to update or correct Buyer’s email address, an electronic communication or notice will be deemed provided to Buyer if Seller uses the email address in Seller’s records for the electronic communication or notice. Nothing in the Agreement confers upon any person other than Seller and Buyer any right or remedy under or by reason of this Agreement. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. This Agreement is governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflict of laws provisions or your actual state or country of residence. Seller and Buyer irrevocably agree to submit to the personal and exclusive jurisdiction of the courts located within the State of Delaware.

RMS ENERGY CO, LLC’s GENERAL TERMS AND CONDITIONS OF SALE

These General Terms and Conditions of Sale (these “Terms”) and the non-conflicting provisions in any service contract, statement of work, work order, purchase order (or other similar ordering document) (each, an “Order”) quotation, acknowledgement or invoice (collectively, with these Terms the “Agreement”) from RMS Energy, LLC a Delaware limited liability company (or such other RMS-affiliated selling entity identified as the contracting seller in the applicable Order or quotation, together with its Affiliates, (“Seller”), govern in all respects the provision of services by Seller (“Services”) to the recipient of such Services (“Buyer”) as set forth in the applicable Order. By executing or submitting an Order, Buyer expressly agrees to this Agreement. In the event of a conflict between these Terms and an Order or any other ordering document issued by Buyer, these Terms shall prevail unless and to the extent expressly agreed otherwise in writing by Seller.

1. Prices and Taxes.

Prices and applicable rates for Services shall be those set forth in a quotation provided by Seller, provided that if Seller commences performance of Services prior to the issuance of a quotation or execution of an Order, Buyer shall be responsible for paying Seller’s rates and fees for such Services as reasonably determined by Seller based on the scope of work performed, and such commencement shall not be construed as a waiver of Seller’s right to require a duly executed quotation or Order. Seller may accept or reject Orders in its sole discretion and Buyer must accept quotations executed or acknowledged by Seller prior to the expiration date indicated on such quotation; provided, that unless otherwise specified therein, quotations shall remain valid for thirty (30) days from the date of issuance or until Seller commences work under the applicable Order, whichever occurs first. Buyer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind (“Taxes”) imposed by any federal, state, or local governmental entity on any amounts payable by Buyer hereunder. If a quotation or Order identifies a deposit, such deposit shall be due and payable in full before Seller has any obligation to commence work, procure materials, reserve service capacity, mobilize, or otherwise provide Services, and Seller shall have no obligation to incur any procurement or other costs in advance of Seller’s receipt of any required deposit. Seller’s prices are based on costs, tariffs, duties, and other charges in effect as of the date Seller establishes its pricing. Seller may increase the price of any Services, notwithstanding the issuance of any Order, quotation, or acceptance thereof, to pass through to Buyer the amount of any new or increased tariffs, duties, customs charges, import or export charges, or other governmental assessments imposed or increased after such date, as well as any material increase in the cost of commodities, raw materials, components, freight, transportation, labor, or other third-party costs outside of Seller’s reasonable control. Seller shall provide Buyer with reasonably prompt written notice of any such price adjustment, and Buyer shall remain obligated to pay the adjusted price for the applicable Services. Services may be priced on a time-and-materials, cost-plus, unit-rate, estimated-cost, or similar variable basis. Unless the applicable quotation or Order expressly identifies the price as a fixed price, any estimate or quoted amount is not a guaranteed maximum price, and Buyer remains responsible for the actual charges incurred in accordance with the applicable rates or pricing methodology.

2. Prevailing Wage; Regulatory Labor Requirements.

Buyer shall disclose to Seller, prior to Seller’s issuance of any quotation, all applicable prevailing-wage, Davis-Bacon Act, Inflation Reduction Act, certified-payroll, apprenticeship, labor-compliance, or similar governmental requirements applicable to the Services to be provided (collectively, “Labor Compliance Requirements”). Seller’s pricing is based solely on the Labor Compliance Requirements, if any, disclosed by Buyer at the time of quotation. If Buyer fails to disclose applicable Labor Compliance Requirements, or if any Labor Compliance Requirements are imposed or modified after the date of Seller’s quotation, and such requirements increase Seller’s costs of performance, Seller may charge Buyer for the resulting additional labor, administrative, compliance, and other costs, and Seller shall be entitled to a corresponding equitable adjustment to the applicable schedule.

3. Payment Terms.

Except as otherwise expressly stated in an Order executed or accepted by Seller, the terms of payment are net 30 days from date of the applicable invoice, subject to Seller’s review and approval of Buyer’s credit. All prices are quoted, and must be paid, in United States dollars, or as otherwise specified on the quotation. Unless otherwise directed by Seller, payments must be made by credit card, check, or ACH. In the event that undisputed payments are not properly received by Seller in accordance with this Section 3, Seller may: (a) charge interest on any such unpaid amounts at a rate of 1½% per month, or the maximum amount permitted by law; and (b) suspend performance for all Services until payment has been made in full, in which event Seller shall be entitled to a reasonable adjustment to the schedule and to recover its resulting demobilization, remobilization, standby, and similar costs, and resumed Services shall be subject to Seller’s then-current availability. Buyer shall be liable and reimburse Seller for all reasonable costs of collection, including, without limitation, applicable attorneys’ and collection agency fees.

4. Cooperation; Inspection and Acceptance (Services).

5. Change Orders.

If either party requests a change in any of the specifications, requirements, customizations, Deliverables, or Services described in the applicable Order, the party seeking the change shall propose the applicable changes by written notice. Seller will prepare a change order describing the proposed changes to the applicable Order and the applicable change in fees and expenses, if any (each, a “Change Order”). Change Orders are not binding unless and until they are executed by both parties. Executed Change Orders shall be deemed part of, and subject to, the Agreement.

6. Customer-Caused Delay; Suspension.

Quoted or estimated mobilization, start, completion, and other performance dates are estimates only and are not guaranteed unless Seller has expressly agreed in writing that a specific date is firm. Seller shall be entitled to a reasonable adjustment to the schedule and to recover its resulting additional costs to the extent any delay or disruption results from Buyer’s readiness, site access, outage scheduling, equipment availability, preceding trades, staffing, the performance of other third parties, changed site conditions, rescheduling, or other circumstances outside Seller’s reasonable control.

7. Ownership Rights; Deliverables (Services).

Seller, including its Affiliates, (or its third-party licensors, as applicable) is and shall at all times remain the sole and exclusive owner of all rights, title, and interest in and to all copyrights, moral rights, patents, inventions, ideas, concepts, know-how, trade secrets, methods, techniques and technical data, engineering, sketches, models, data, software, codes, analytics, processes, formulae, dossiers, descriptions, specifications, documentation and any other intellectual property rights (and all associated goodwill), and any enhancements, derivations or modifications to any of the foregoing (“Intellectual Property”) owned, licensed or developed by Seller or its third-party licensors at any time, including in connection with this Agreement. Buyer shall remain the owner of all Intellectual Property rights of Buyer existing prior to the effective date of this Agreement or independently of this Agreement and any Buyer-provided materials or specifications (“Buyer IP”). To the extent Seller provides or develops any deliverables, work product or similar materials (“Deliverables”) on behalf of Buyer under this Agreement or any Order, Seller shall be the sole and exclusive owner of such Deliverables and all Intellectual Property rights therein (except to the extent any Buyer IP is incorporated therein). Subject to Buyer’s full satisfaction of its payment obligations hereunder, Seller hereby grants to Buyer a perpetual, non-exclusive, limited, non-transferable and non-sublicensable license to use the Deliverables for its internal business purposes in accordance with this Agreement. Buyer hereby grants to Seller a non-exclusive, limited, royalty-free license to use Buyer IP in connection with this Agreement, including providing the Services and Deliverables hereunder.

8. Warranties; Disclaimers.

(a) Seller Warranty. Seller warrants that it has the right to enter into this Agreement and deliver the Services to Buyer under this Agreement. Seller represents and warrants to Buyer that it shall perform Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under the Agreement. Seller further warrants that Services shall be free from defects in workmanship and performed in accordance with this Agreement. Such warranty shall remain in effect for a period of one (1) year following completion of the applicable Services, during which time Seller shall, at its sole cost and expense, promptly repair, replace, or re-perform any defective Services upon Buyer’s notice.

(c) Buyer Acknowledgments. Buyer is solely responsible for determining the fitness and suitability of Deliverables for the use contemplated by Buyer. Buyer shall ensure that (i) the Deliverables are used only for the purposes and in the manner for which they were designed and supplied, (ii) all persons likely to use or come into contact with the Deliverables receive appropriate training and copies of applicable instructions and documentation supplied by Seller, (iii) all third parties who use or may be affected by or rely upon the Deliverables are given full and clear warning of any hazards associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with, and (iv) any warning notices displayed on the Deliverables are not removed or obscured. Buyer assumes all responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Deliverables.

THE WARRANTIES SET FORTH IN THIS SECTION 8 ARE SELLER’S SOLE AND EXCLUSIVE WARRANTIES IN CONNECTION WITH THIS AGREEMENT, AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, INFRINGEMENT; TITLE, NONCONFORMITIES, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, USAGE OF TRADE, AND FITNESS FOR A PARTICULAR PURPOSE. ALL SERVICES AND DELIVERABLES ARE PROVIDED AS-IS AND WITH ALL FAULTS. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE REMEDIES PROVIDED IN THIS SECTION 8 ARE BUYER’S SOLE REMEDIES FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO SERVICES. All warranty claims must be submitted to Seller on or before the end of the applicable warranty period for processing by Seller.

(d) Customer Indemnity. Buyer shall indemnify, defend, and hold harmless Seller, its Affiliates, and their respective officers, directors, employees, and agents from and against any and all third-party claims, demands, actions, liabilities, losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) any specifications, designs, data, materials, or intellectual property provided by Buyer to Seller; (b) Buyer’s misuse, modification, or unauthorized use of any Deliverables; (c) Buyer’s negligence or willful misconduct; or (d) Buyer’s breach of applicable law or of this Agreement. This indemnification obligation is in addition to, and shall not limit, any of Seller’s rights or protections under this Agreement, including the limitations of liability set forth in Section 9.

9. Limitation of Liability.

To the extent permitted by law, Seller’s total aggregate liability under the Agreement, under any theory of liability (including without limitation negligence, breach of contract, indemnification or strict liability), shall not exceed: the value of the specific, related Purchase Order (“PO”) giving rise to liability hereunder, specifically the amounts paid by Buyer to Seller under such PO for the Services giving rise to the claim. In no event shall Seller’s liability extend to or be measured by the value of this Agreement as a whole or any other Order or PO. Under no circumstances shall Seller be liable for any special, incidental, indirect, punitive or consequential damages, including without limitation, loss of profits; business or reputation, business interruption or loss of use, or data under any theory of liability and whether or not Seller was advised of the possibility of such damages. Any action arising under or relating to the Agreement, (under any theory of liability), must be commenced within one year after the date of performance of the applicable Services. Seller has set its prices and entered into the Agreement in reliance upon the limitations of liability and other terms and conditions specified herein, which allocate the risk between Buyer and Seller and form a basis of this bargain between the parties.

10. Excused Performance.

Neither party shall be considered in default of its performance of any obligation under the Agreement (other than an obligation to make any payment due under the Agreement) to the extent that performance of such obligation is prevented or delayed by acts of God; war (declared or undeclared); terrorism or other criminal conduct; fire; flood; weather; sabotage; strikes, or labor or civil disturbances; epidemics, pandemics, COVID-19 or other public health emergencies, and any quarantines or governmental restrictions related thereto; supply-chain disruptions, shortages, or transportation disruptions; governmental requests, restrictions, laws, regulations, orders, omissions or actions; unavailability of, or delays in, utilities, materials, labor, or transportation; or any other events or causes beyond Seller’s reasonable control or other cause beyond such party’s reasonable control, (each, a “Force Majeure Event”). Performance of Services may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of a Force Majeure Event, but the remainder of the Agreement will otherwise remain unaffected as a result of the Force Majeure Event. For the avoidance of doubt, if a Force Majeure Event prevents Seller from conducting a site visit to Buyer’s premises or from otherwise obtaining any requested information under Section 4 herein, any corresponding delays in performance by Seller shall be excused under this Section 10 and shall not constitute a breach of the Agreement. Any corresponding shifts in dates of delivery or performance of Services resulting from a Force Majeure Event shall entitle Seller to a reasonable extension of time to perform, and, at Seller’s option, may be reflected in a duly executed Change Order, as specified in Section 5 herein.

11. Confidential Information.

Each party hereto may be given access to non-public, confidential or proprietary information, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”) from the other party in order to perform its obligations under the Agreement. Confidential Information shall not include information that is or becomes publicly known other than through any act or omission of the receiving party; was in the receiving party’s lawful possession before the disclosure by the disclosing party; is lawfully disclosed to the receiving party by a third party without restriction on disclosure; is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, which independent development can be shown by written evidence; or is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. The receiving party shall hold the disclosing party’s Confidential Information in strict confidence and, unless required by law or following written consent from the disclosing party, not make the disclosing party’s Confidential Information available to any third party. If the receiving party is required by law, rule, or regulation to disclose any of the disclosing party’s Confidential Information, the receiving party shall, to the extent permitted by law, provide the disclosing party with prompt written notice of each such request and reasonably cooperate with the disclosing party’s efforts to seek an appropriate protective order or waive compliance with the provisions of the Agreement or both. This Section 11 shall survive termination of the Agreement. Within ten (10) days following termination of the Agreement, the receiving party shall deliver or destroy any copies of the disclosing party’s Confidential Information in written or other tangible or intangible form along with any copies, reproductions, and summaries thereof, together with a certificate executed by the receiving party certifying the delivery or destruction of all such materials.

12. Termination.

13. Upstream Payment Remedies.

To the extent RMS is performing Services as a subcontractor or in connection with a project involving an owner, general contractor, construction manager, or other upstream party, and to the extent permitted by applicable law and the applicable project arrangements, Seller reserves the right to communicate directly with such upstream party regarding any amounts unpaid by Buyer, and to pursue any lien, bond, stop-work, payment, or other contractual or statutory remedies available to Seller under applicable law or the applicable project documents. Nothing in this Section shall be construed to grant Seller an unrestricted right to circumvent Buyer, and Seller shall provide Buyer with reasonably prompt notice before exercising such rights where practicable under the circumstances.

14. Safety Incident; Regulatory Disclosure.

15. Assignment; Change of Control.

16. Dispute Resolution.

17. General Provisions.

The Agreement constitutes the entire agreement between the parties and supersedes all other communications between the parties relating to the subject matter of the Agreement. Seller’s quotations are offers that may only be accepted in full. No conditions, usage or trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, reject, or supplement the Agreement shall be binding unless made in writing and signed by both parties, expressly and specifically referencing the Agreement, and no modification or objection shall be caused by Seller’s receipt, acknowledgment, or acceptance of Orders, shipping instruction forms, or other documentation containing different or additional terms to those set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver is expressed in a writing signed by both parties, specifically referencing the Agreement. By submitting an Order for Services, Buyer consents to do business and receive communications, receipts and notices from Seller in connection with this Agreement electronically, at Seller’s option. If Buyer gives Seller an incorrect email address or fails to update or correct Buyer’s email address, an electronic communication or notice will be deemed provided to Buyer if Seller uses the email address in Seller’s records for the electronic communication or notice. Nothing in the Agreement confers upon any person other than Seller and Buyer any right or remedy under or by reason of this Agreement. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. This Agreement is governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflict of laws provisions or your actual state or country of residence. Seller and Buyer irrevocably agree to submit to the personal and exclusive jurisdiction of the courts located within the State of Delaware.

RMS ENERGY CO, LLC’s GENERAL TERMS AND CONDITIONS OF PURCHASE

These General Terms and Conditions of Purchase (these “Terms”), by and between RMS Energy, LLC and any of its affiliates or related entities (“Buyer”) and the seller or supplier furnishing Products to Buyer under an Order, as named in such Order, (“Seller”) govern, apply to and are hereby incorporated by reference into each purchase order, statement of work, order form, quotation or other similar ordering document (each, an “Order”) between Buyer and Seller (attached hereto or otherwise issued by Buyer to Seller) for Buyer’s purchases of products and/or services (“Products”) from Seller. These Terms, collectively with all Orders between the parties constitute a binding agreement (collectively, the “Agreement”). In the event of a conflict between the terms of an Order and the terms set forth herein, these Terms shall prevail unless expressly stated otherwise in the applicable Order.

1. Forecasts; Order of Precedence

Forecasts, to the extent any are provided by Buyer or set forth in an Order for Products, are non-binding estimates provided strictly for planning purposes, do not constitute any commitment by Buyer to purchase Products, and may not be relied upon by Seller. In the event of any conflict between these Terms and any other document, terms and conditions or instrument submitted by Seller or referenced in an Order, these Terms will govern. Unless expressly stated otherwise in the applicable Order, Seller must reject Orders submitted by Buyer within three business days of receipt, or the Order will be deemed accepted by Seller. Buyer expressly limits acceptance of Orders to the terms stated herein. Unless otherwise agreed by the parties in writing, any additional, different, or inconsistent terms or conditions contained in any Order or acknowledgment, acceptance, or confirmation therefor provided by Seller in connection with the implementation of the Order are hereby rejected by Buyer; provided, however, that inclusion of such additional terms shall not operate as a rejection of the applicable Order (unless such variances are in the terms of the description, quantity, price or delivery schedule of ordered Products), but will be deemed a material alteration thereof, and must be accepted by Buyer in writing before Seller may commence performance thereof.

2. Shipment and Delivery.

(a) All Products must be (i) suitably packed or otherwise prepared by Seller for shipment to prevent damage or loss, to obtain the lowest transportation and insurance rates, and to meet the carrier’s requirements, and (ii) shipped in accordance with good manufacturing and distribution practices, generally accepted industry standards, and any instructions set forth in the applicable Order. Expenses incurred by either party due to Seller’s failure to comply with these Terms are the sole responsibility of Seller. Seller’s name, complete ship-to address and applicable Order number must appear on all invoices, bills of lading, packing slips, cartons and correspondence. Bills of lading must be attached to invoices submitted, showing carrier, number of cartons, weight and date of shipment. Packing slips must accompany all shipments listing contents of shipment in detail.

(b) Time is of the essence for all Orders. Deliveries are to be made only in the quantities and at the dates and times specified in the applicable Order. Unless otherwise stated in the applicable Order, delivery terms are DDP Buyer’s location designated on the face of the applicable Order. Title to the Products remains with Seller until receipt by Buyer of conforming Products at the destination in accordance with the applicable Order. Risk of loss or damage to Products shall pass to Buyer only after Buyer’s receipt, inspection and acceptance of such Products in accordance with these Terms. If Seller anticipates any delay in delivery, Seller must immediately notify Buyer and take reasonable steps, at its cost, to expedite delivery. Buyer may cancel any Order or portion thereof if delivery is not made on time or if notice is given that a delivery is expected to be late. If Seller fails to deliver conforming Products in accordance with the applicable Order, Buyer may, without limiting any other right or remedy, procure substitute products or services from an alternate source, and Seller shall reimburse Buyer for any reasonable incremental costs and expenses incurred by Buyer in doing so.

(c) Invoices covering Products shipped in advance of the date set forth in Buyer’s delivery schedule will not be paid until their normal due date after the date specified for delivery. Partial shipments are not allowed without the express written consent of Buyer. Upon identification and notification of defective Products or nonconforming shipments, Buyer shall receive full credit either for scrap or return, which credit will include full costs paid to Seller, together with shipping, processing and related costs, if applicable. Within one week of the shipment of defective Product, Seller shall submit to Buyer a written explanation of the root cause and corrective actions implemented to prevent recurrence.

(d) For each day past the delivery date set forth in the applicable Order for which conforming Products are not delivered, Buyer shall be entitled to liquidated damages in the amount of 2% of the fees for such Products per day after the delivery date that such Products are not delivered. Such liquidated damages shall be Buyer’s exclusive remedy for delay damages to the extent required by applicable law; provided, however, that the assessment of liquidated damages shall not otherwise limit, foreclose or act as an election of remedies with respect to any other rights or remedies available to Buyer at law or in equity for any other breach of the Agreement, including for the underlying failure to deliver giving rise to such liquidated damages. In the event liquidated damages assessed under this Section 2(d) with respect to an Order reach, in the aggregate, ten percent (10%) of the total value of such Order, Buyer shall have the right, in addition to any other rights and remedies available to it, to terminate the applicable Order, or the Agreement in whole or in part, for cause.

3. Inspection; Testing; Acceptance and Rejection.

(a) Buyer and/or its end customers (each, a “Customer”) may reject any delivery or cancel all or any part of any Order if Seller fails to make delivery in conformity with the terms and conditions of the applicable Order or the Agreement including, without limitation, any failure of Products to conform to any applicable specifications, instructions or other requirements (including without limitation those stated in the applicable Order) (“Specifications”) and quality, functionality or other performance criteria published by Seller for Products. Buyer or the applicable Customer, as applicable, may also reject Products that are not delivered on time in accordance with the dates set forth in the applicable Order, even if such Products otherwise conform to the Specifications. In the event any Products are rejected by Buyer or a Customer, Buyer or the applicable Customer may return or dispose of (at Seller’s option), and Seller shall pay to Buyer (or the applicable Customer, as directed) immediately: (i) any prepayments which Buyer or a Customer has made for the rejected Products; (ii) the cost to Buyer or a Customer of storing the rejected Products; (iii) the cost to Buyer or a Customer of returning or disposing of the rejected Products (by whatever reasonable means Buyer determines); and (iv) all other expenses incurred by Buyer or a Customer in connection therewith. Buyer’s or a Customer’s acceptance of any non-conforming delivery or portion thereof shall not constitute a waiver of its right to reject future deliveries or a waiver of any claim which Buyer may have regarding nonconforming Products. If Seller (x) fails to supply Products, (y) fails to supply Products meeting the Specifications, or (z) fails to meet Buyer’s delivery schedules and delivery requirements set forth in the applicable Order, then Buyer may, in its sole discretion, purchase Products from another supplier or alternate source as Buyer, in its sole discretion, deems necessary. In such event, Seller shall reimburse Buyer for any additional costs and expenses incurred by Buyer in purchasing Products from such alternate source.

(b) Payment for the Products does not constitute Buyer’s acceptance thereof. Buyer has the right to inspect all Products within a reasonable period of time following delivery, not to be less than (60) days or longer where reasonably necessary based on the nature of the Products, applicable testing requirements, or Buyer’s or a Customer’s ability to inspect (the “Inspection Period”), and to reject any or all Products that are in Buyer’s judgment defective or nonconforming. Buyer shall provide Seller notice of rejection of any Products with respect to any defects discovered during the Inspection Period within thirty (30) days of such discovery. No inspection, acceptance, or failure to reject Products during the Inspection Period shall constitute a waiver of any latent defect, warranty claim, or nonconformity that could not reasonably have been discovered during the Inspection Period, and Buyer reserves all rights and remedies with respect to any such latent defects, warranty claims, or nonconformities notwithstanding acceptance. Buyer may request, at its option, prompt replacement of rejected Products or a refund or credit equal to the purchase price. Products supplied in excess of the quantities specified in the Order may be returned to Seller at Seller’s expense. Buyer reserves the right to use rejected materials, as it believes advisable or necessary to meet its contractual obligations to customers, without waiving any rights against Seller. Nothing contained in the Agreement relieves Seller from the obligation of testing, inspection and quality control.

(c) All rights of Buyer under this Section 3 shall pass through to Buyer’s Customers, and Buyer may pass through to Seller any Customer complaints relating to a Product.

(d) Where Seller’s Products and/or services are being provided in connection with a contract between Buyer and a Customer, Seller shall comply with those Customer requirements that (i) are applicable to Seller’s scope of work, Products, services, acts or omissions, and (ii) have been provided or made available to Seller in writing. To the extent applicable to Seller’s scope of work under an Order, Seller shall assume toward Buyer the obligations and responsibilities that Buyer has assumed toward the applicable Customer, but solely to the extent such obligations relate to Seller’s scope of work, Products or services. Nothing in this Section 3(d) shall be construed to incorporate by reference any Customer or prime contract terms that have not been provided or made available to Seller.

4. Prices; Payment

5. Changes

Buyer may at any time make changes in the scope or quantity of Products in which event an equitable adjustment will be made to any price, time of performance, and other provision of this Order, if appropriate. Any other change to ordered Products set forth in the applicable Order must be pre-approved in writing by Buyer. Should Seller change ordered Products without prior written approval from Buyer, without waiving any other rights against Seller, Buyer shall not be liable for charges related to such changes and may reject any Products not conforming with the Specifications or quantities set forth in the original Order.

6. Confidentiality

Each party may receive or have access to non-public, proprietary or confidential information, of the other party (“Confidential Information”) in connection with the Agreement. Buyer’s Confidential Information includes, without limitation specifications, drawings, sketches, models, designs, engineering, software, codes, prices, samples, tools, technical information, methods, processes, techniques, shop practices, plans, know-how, trade secrets, ideas, inventions, intellectual property, instructions, data, analytics, information or lists relating to suppliers, customers and employees, financial, marketing or business plans or information, and any other information or materials that should reasonably be deemed confidential given the nature of Buyer’s business, in any form or medium, furnished to or accessed by Seller in connection with the Agreement, including the applicable Order and all aspects of it, all which is and shall remain the sole and exclusive property of Buyer. All Confidential Information and any copies, summaries, notes or derivations thereof, must be immediately returned to Buyer upon Buyer’s request or upon cancellation, termination or completion of the applicable Order(s) or this Agreement. Confidential Information of each party shall be kept confidential by the recipient (using at least reasonable care), shall be used only in the fulfillment of Orders, or in performing the recipient’s obligations under the Agreement, and may be disclosed or used for other purposes only upon such terms as may be agreed upon between Buyer and Seller in writing or to the extent required by applicable law or governmental order (provided, that the recipient gives the discloser prompt written notice of such legal requirement and cooperates reasonably with the discloser upon request in seeking a protective order).

7. Proprietary Rights.

(a) Seller hereby grants to Buyer a worldwide, perpetual, transferable and royalty-free license to use, sell, resell, lease, exploit, offer for sale, import, distribute, advertise, market and promote Products (including through packaging, repackaging, labeling, bundling and documentation) that incorporate in whole or in part, and using the trademark, service marks, names, logo, trade dress or other marks (“Marks”) or Intellectual Property (as defined below) rights of Seller.

(b) Seller hereby grants and assigns to Buyer, and shall not otherwise make use of, all rights, title and interest in and to original or custom works, products, work product, deliverables, specifications, documentation and materials reduced to tangible form and specifically created by Seller (or its employees, contractors or other third parties) for delivery to Buyer in connection with this Agreement (“Deliverables”) (including, but not limited to, drawings, designs, engineering, models, dossiers, descriptions, software, codes, analytics, formulae, processes, techniques, data, and copyrights, moral rights, patents, ideas, inventions, concepts, trade secrets, know-how, trademarks, and any other intellectual property rights (and all associated goodwill and any modifications, enhancements or derivations to any of the foregoing) (“Intellectual Property”) embedded therein (excluding Seller’s Intellectual Property existing prior to the effective date of this Agreement or developed independently of Buyer and this Agreement (“Seller IP”). To the extent Seller IP is embedded into any Deliverables, Seller hereby grants to Buyer a perpetual, worldwide, royalty-free, transferable and sublicensable license to use Seller IP in connection with Buyer’s use of Deliverables.

(c) Seller shall not use, reproduce, or appropriate for or disclose to third parties, any materials, specifications, instructions, tooling, dies, drawings, Intellectual Property or other property or information of Buyer furnished to Seller in connection with this Agreement (“Buyer Materials”) without Buyer’s prior written approval. Buyer is and shall at all times remain the sole and exclusive owner of all right, title and interest in and to all Buyer Materials. Seller shall not modify or combine Buyer Materials with any other materials except as expressly authorized by Buyer. Seller shall bear the risk of loss or damage to all Buyer Materials until returned to Buyer. All Buyer Materials shall be returned to Buyer at cancellation, termination, or completion of the Agreement or applicable Order unless Buyer directs otherwise in writing.

8. Warranties.

Seller represents and warrants that: (a) all Products, Deliverables and Seller’s performance under the Agreement will (i) conform to the Agreement and all applicable drawings, specifications, descriptions, and samples furnished to or supplied by the Seller, (ii) be merchantable and free from defects in design, material, and workmanship, and (iii) be fit and safe for their intended purposes; (b) the Products and Deliverables, as applicable, (including packaging, labeling and documentation) are free from all liens and encumbrances and do not infringe upon or violate any intellectual property, privacy or other proprietary or property right of any third party; (c) it has the right to grant Buyer all licenses to any Intellectual Property embedded or incorporated into any Products or Deliverables; (d) any services provided hereunder will be performed in a professional, workmanlike manner consistent with generally accepted industry standards; (e) Seller has and will maintain all licenses, permissions, authorizations, consents and permits necessary to perform its obligations under this Agreement and each Order; and (f) it has complied and Seller and the Products and Deliverables provided hereunder shall comply with all applicable laws, rules and regulations. Buyer may pass through all warranties herein and of Seller (and its manufacturers, if applicable) regarding the Products to its Customers who purchase Products.

9. Security of the Supply Chain.

Seller shall provide the necessary organizational instructions and take commercially reasonable measures (particularly with regard to the following security aspects: premises security, packaging and transport, business partner, personnel and information) in order to guarantee the security in the supply chain according to the highest degree of care for the applicable industry or as otherwise specified by Buyer in an Order. Seller shall protect the goods and services provided to Buyer or provided to third parties designated by Buyer against unauthorized access and manipulation. Seller shall only employ or engage reliable personnel for those goods and services and shall obligate any sub-suppliers to take equivalent security measures.

10. Compliance with Laws

By the acceptance of this Agreement, Seller represents and warrants that Products provided pursuant to this Agreement shall be manufactured, labeled, shipped, stored and otherwise handled in strict compliance with all applicable laws, codes, ordinances, regulations, executive orders and industry standards, including without limitation: (a) the Fair Labor Standards Act of 1938; (b) the Toxic Substances Control Act, (c) Dodd Frank Consumer Protection Act (Conflict Minerals); (d) the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972; (e) the Williams-Steiger Occupational Safety and Health Act of 1970; (f) any applicable federal, state, and local laws and regulations regarding discrimination because of race, color, religion, national origin, sex, age, handicap, or veteran status, including, without limitation, 41 CFR Part 60-1, 41 CFR Part 60-250, and 41 CFR Part 60-741 as amended; and (g) applicable export control, customs and foreign trade regulations (“Foreign Trade Regulations”), along with any and all regulations, amendments and standards promulgated or adopted under any of the foregoing, all of which are incorporated by reference. Seller further represents and warrants to Buyer that it shall comply and cause each of its employees, agents and representatives to comply with all such laws, codes, ordinances, regulations and orders. Seller shall promptly furnish, upon Buyer’s request, all certifications required under any such laws, codes, ordinances, regulations and orders and all information otherwise reasonably necessary to assist Buyer with its compliance as requested by Buyer from time to time. Seller shall advise Buyer in writing within two weeks of receipt of the Order – and in case of changes without undue delay – of any information and data required from Buyer to comply with all Foreign Trade Regulations in case of export, re-export and import, including without limitation (i) all applicable export list numbers, including the Export Control Classification Number according to the U.S. Commerce Control List (ECCN); (ii) the statistical commodity code according to the current commodity classification for foreign trade statistics and the HS (Harmonized System) coding; and (iii) the country of origin and upon Buyer’s request a certificate of origin. Buyer expects all of its suppliers to follow legal and ethical business practices. In providing Products, Seller shall comply with all applicable federal and state guidance, ethical industry standards and Buyer’s policies as provided or made available to Seller.

11. Termination.

The term of this Agreement begins upon Seller’s acceptance of an Order (or deemed acceptance as set forth in Section 1) and continues until completion of all Orders or until otherwise terminated in accordance with this Section. Buyer may terminate the Agreement or any Order in whole or in part upon written notice to Seller. Upon termination of the Agreement, in whole or in part, by Buyer for any reason, Seller shall immediately (a) stop all work under the terminated Agreement, (b) cause any of its suppliers or subcontractors to cease work, and (c) preserve and protect Deliverables, work in progress and materials on hand purchased for or committed to under the Agreement in its own and in its suppliers’ or subcontractors’ plants pending Buyer’s instructions. Notwithstanding any provision to the contrary in this Section, Buyer shall not owe Seller any lost profit or payment for any materials or Products that Seller may consume or sell to others in its ordinary course of business. If Buyer’s termination of the Agreement is for convenience rather than Seller’s failure to comply with any term of the Agreement, Seller’s sole compensation for such termination shall be payment by Buyer of the percentage of the total Order price corresponding to the proportion of work completed in filling the Order prior to such notice. A claim by Seller for such compensation must be submitted to Buyer within sixty (60) days after the date of termination and shall be subject to Buyer’s approval. If Buyer terminates the Agreement or an Order for cause, Seller shall not be entitled to any further compensation and Seller shall promptly issue Buyer a pro rata refund for any prepaid amounts under any Orders for Products or Deliverables not properly provided thereunder.

12. Indemnity

Seller shall defend, indemnify and hold harmless Buyer, its affiliates, officers, employees and agents, as well as all users of Products, against all claims, damages, liability, losses, fines, or judgments, including costs, attorney fees, and other expenses, relating to or arising out of (a) Seller’s breach of any representation, warranty, covenant or other provision of the Agreement; (b) personal injury (including death) or property damage caused by Products or Seller’s acts, omissions or breach of the Agreement; (c) defective or nonconforming Products or Deliverables, including the failure to timely deliver Products; or (d) actual or alleged infringement of a third party’s intellectual property rights by any Products (including packaging, labeling documentation, materials and Intellectual Property rights therein).

13. Insurance.

Seller shall maintain during the term of this Agreement and for one year after the last delivery under the last remaining Order issued by Buyer, insurance coverage with well-recognized, reputable insurance providers reasonably acceptable to Buyer, in types and amounts consistent with prevailing industry standards and adequate to ensure Seller meets its obligations under this Agreement, subject to any additional requirements set forth in an Order. Each insurance policy hereunder shall name Buyer as an additional insured. At Buyer’s request, Seller shall furnish Buyer with certificates of insurance evidencing compliance with this Section 13.

14. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER WILL NOT BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS OR REPUTATION, UNDER ANY THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY REGARDING PRODUCTS OR SELLER’S PERFORMANCE HEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BUYER’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THE AGREEMENT (INCLUDING ALL ORDERS HEREUNDER) EXCEED THE AMOUNTS PAID FOR THE PRODUCTING GIVING RISE TO SUCH CLAIM UNDER THE APPLICABLE ORDER IN THE 12 MONTHS IMMEDIATELY PRECEDING SUCH CLAIM. BUYER SHALL NOT BE LIABLE FOR INTEREST CHARGES OR PENALTIES OF ANY DESCRIPTION. NO LAWSUIT MAY BE BROUGHT AGAINST BUYER ON ACCOUNT OF ANY BREACH BY BUYER UNLESS THE SUIT IS INSTITUTED WITHIN TWO YEARS OF THE DATE OF BREACH.

15. Audit.

Upon reasonable notice, Seller shall provide and shall cause Seller’s contractors, subcontractors and agents to provide to Buyer or its representatives, including its designated third parties or external auditors, access to Seller’s facilities, processes, quality control protocols, data, books and records relating to the Products, Deliverables or Seller’s performance under this Agreement for the purposes of: (a) verifying the integrity and security of Buyer’s data and Buyer Materials; (b) verifying Seller’s compliance with the Agreement or any Order; and (c) enabling Buyer to comply with all applicable laws or regulatory requirements, inspections or audits. If any such audit reveals that Seller has overcharged Buyer, Seller shall promptly reimburse Buyer for such overcharge, and in the event that any such overcharge exceeds five percent (5%) of the amount that should have been charged, Seller shall promptly reimburse Buyer for all reasonable costs and expenses incurred in the conduct of the audit.

16. Governing Law; Jurisdiction

The Agreement and all rights and duties under the Agreement are governed by, and construed in accordance with, the laws of the State of Delaware. Buyer shall have all rights and remedies granted it by the Uniform Commercial Code, without exclusion or limitation. Buyer’s rights under the Agreement are in addition to any other legal or equitable remedies it may have against Seller. Seller and Buyer consent to the exercise of jurisdiction over them by the courts located in Delaware, and Seller and Buyer waive any objection to the assertion or exercise by such court of such jurisdiction.

17. Notice.

All notices to Buyer shall be sent via registered mail or nationally recognized courier service to Buyer with email copy sent to: legal@rmsenergy.com.

18. Publicity.

Unless otherwise required by law, Seller shall not issue any press release or otherwise use Buyer’s name or Marks for the purpose of publicity or in its promotional materials, or make any presentation with respect to the existence of this Agreement without Buyer’s prior written consent.

19. Force Majeure

Neither party shall be liable for any failure or delay in the performance of its obligations under the Agreement (other than payment obligations) to the extent such failure or delay is caused by an event beyond such party’s reasonable control that could not have been avoided or mitigated through the exercise of reasonable diligence, limited to: fire, flood, earthquake or other natural disaster; war, terrorism, riot or civil insurrection; and government order, embargo or other action of a governmental authority having the effect of law that directly prohibits performance (each, a “Force Majeure Event”). Notwithstanding the foregoing, in no event shall a Force Majeure Event include, and Seller may not assert or rely on force majeure, impossibility, impracticability or any similar doctrine in connection with, any shortage, unavailability, allocation or rationing of components, raw materials, labor, capacity, transportation or other supply, or any increase in the cost thereof, and any such circumstance shall not excuse or delay Seller’s performance under the Agreement or any Order. If Seller’s ability to supply Products is constrained for any reason, including a shortage described in the preceding sentence, Seller shall allocate and prioritize its available supply, capacity and inventory of Products to Buyer at least ratably with, and no less favorably than, Seller’s other customers, and shall not reduce, delay or reallocate Buyer’s Orders in favor of any other customer. A party seeking to claim relief on account of a Force Majeure Event must promptly notify the other party in writing of the nature and expected duration of the event, and shall use commercially reasonable efforts to mitigate its effects and resume performance as soon as reasonably possible. If a Force Majeure Event affecting Seller’s performance continues for more than thirty (30) days, Buyer may, without liability, terminate the affected Order or the Agreement in whole or in part upon written notice to Seller.

20. General.

The invalidity of any provision contained in the Agreement will not affect the validity of any other provision. Buyer’s failure to insist on performance of any term or condition or to exercise any right or privilege shall not waive any such term, condition, right or privilege. The Agreement may be amended or modified only by a written instrument separately signed by Buyer and Seller. Seller shall not subcontract or assign its rights or obligations under the Agreement, in whole or in part, without Buyer’s prior written consent, and any attempted subcontract or assignment by Seller in violation of this Section shall be null and void. Notwithstanding the foregoing, Buyer may, without Seller’s consent and without such action constituting a breach, voiding, or grounds for termination of the Agreement or any Order, assign, transfer or delegate this Agreement and any Order, in whole or in part, to (i) an affiliate of Buyer, or (ii) a successor entity (whether by merger, consolidation, acquisition, reorganization or other change of control) or a purchaser of all or substantially all of the assets or equity of Buyer or the relevant business unit to which the Agreement relates. Any such assignee or successor shall assume and remain liable for all outstanding obligations owed under the Agreement and any Order, and such assignment shall not otherwise relieve, modify or diminish Seller’s rights or Buyer’s obligations under the Agreement or any Order. The failure of Buyer to insist in any instance upon strict performance by Seller of any provision of this Agreement or an Order shall not be construed as a continuing waiver of such item, or waiver of any other provision of this Agreement or any corresponding Agreement. Seller agrees to pay all costs and expenses paid or incurred by Buyer in enforcing its rights under this Agreement, including, without limitation, reasonable attorney’s fees and costs. The provisions of Sections 1 and 6-20, and any other provision of these Terms or any Order that should by their nature survive, shall survive termination or expiration of the Agreement for any reason.

RMS EQUIPMENT SOLUTIONS GENERAL TERMS AND CONDITIONS OF PURCHASE

These General Terms and Conditions of Purchase (these “Terms”), by and between RMS Equipment Solutions, LLC, on behalf of itself and, where applicable, the specific purchasing entity identified as buyer in the applicable Order, together with its affiliates or related entities (“Buyer”) and the seller or supplier furnishing Products (including equipment, components, materials, replacement parts and related goods, together with any incidental or related services such as engineering, fabrication, testing, inspection, commissioning, repair or technical support included in an Order) to Buyer under an Order, as named in such Order, (“Seller”) govern, apply to and are hereby incorporated by reference into each purchase order, statement of work, order form, quotation or other similar ordering document (each, an “Order”) between Buyer and Seller (attached hereto or otherwise issued by Buyer to Seller) for Buyer’s purchases of products and/or services (“Products”) from Seller. These Terms, collectively with all Orders between the parties constitute a binding agreement (collectively, the “Agreement”). In the event of a conflict between the terms of an Order and the terms set forth herein, these Terms shall prevail unless expressly stated otherwise in the applicable Order.

1. Forecasts; Order of Precedence

2. Shipment and Delivery.

3. Inspection; Testing; Acceptance and Rejection.

(b) Payment for the Products does not constitute Buyer’s acceptance thereof. Buyer has the right to inspect all Products within a reasonable period of time following delivery, not to be less than (60) days or longer where reasonably necessary based on the nature of the Products, including where inspection, testing, commissioning or acceptance occurs after delivery at an RMS facility, project site or end-customer location, or based on the nature of the Products, applicable testing requirements, or Buyer’s or a Customer’s ability to inspect (the “Inspection Period”), and to reject any or all Products that are in Buyer’s judgment defective or nonconforming. Buyer shall provide Seller notice of rejection of any Products with respect to any defects discovered during the Inspection Period within thirty (30) days of such discovery. No inspection, acceptance, or failure to reject Products during the Inspection Period shall constitute a waiver of any latent defect, warranty claim, or nonconformity that could not reasonably have been discovered during the Inspection Period, and Buyer reserves all rights and remedies with respect to any such latent defects, warranty claims, or nonconformities notwithstanding acceptance. Buyer may request, at its option, prompt replacement of rejected Products or a refund or credit equal to the purchase price. Products supplied in excess of the quantities specified in the Order may be returned to Seller at Seller’s expense. Buyer reserves the right to use rejected materials, as it believes advisable or necessary to meet its contractual obligations to customers, without waiving any rights against Seller. Nothing contained in the Agreement relieves Seller from the obligation of testing, inspection and quality control.

(c) All rights of Buyer under this Section 3 shall pass through to Buyer’s Customers, and Buyer may pass through to Seller any Customer complaints relating to a Product.

4. Prices; Payment

Prices for all Products will be as stated in the Order, and separately state all charges for packing, hauling, storage and transportation to point of delivery and all applicable federal, state, provincial and local taxes, tariffs, duties, customs charges, import and export fees (including sales and use taxes and any other similar governmental assessments applicable to Seller’s performance or the Products, which shall be included in the prices for the Products and may not be charged as additional amounts to Buyer); provided, however, that (i) in no event will the price charged by Seller under the Agreement be higher than the Seller’s standard market prices charged to other customers purchasing similar Products; and (ii) Seller may not increase prices on Products after acceptance of the applicable Order for any reason, including as a result of new or increased tariffs, duties, customs charges, import or export fees, material costs, supply-chain costs, or other similar charges, unless such increase is expressly approved by Buyer in writing in advance. Notwithstanding the foregoing, if a new or increased tariff, duty, customs charge or similar governmental assessment is imposed on Products after acceptance of the applicable Order, Seller may submit a written request for a corresponding price adjustment; provided that any such adjustment (1) must directly apply to the Products covered by the Order; (2) must represent an actual incremental tariff, duty, customs or similar governmental cost incurred by Seller after Order acceptance; (3) must be supported by reasonable documentation establishing the amount and applicability of the increase; (4) may not include additional markup, profit or unrelated cost escalation unless expressly approved by Buyer; and (5) is not effective unless and until Buyer expressly approves the adjustment in writing in advance. Seller has no automatic or unilateral right to increase pricing under this Section 4. If Buyer does not approve Seller’s requested adjustment, Buyer may reject the increase and, where appropriate, cancel the unperformed portion of the affected Order without liability, or obtain the affected Products from another source. For the avoidance of doubt, Buyer’s right to pass through tariffs or similar governmental assessments to its Customers shall not create any corresponding right for Seller to increase the price of Products. Unless agreed otherwise in the applicable Order, payment terms for all Products will be net sixty (60) days receipt of undisputed invoice with a two percent (2%) discount where payment is made within thirty (30) days of receipt of undisputed invoice. Buyer shall be entitled to fulfill contractual payment obligations through any affiliate of Buyer, and Buyer shall be entitled to set off any amounts owing at any time from Seller to Buyer or any of its affiliated parties against any amount payable at any time by Buyer or such affiliates in connection with the Agreement or an Order. Seller shall provide its banking information to accommodate payment via ACH as requested by Buyer.

5. Changes

Buyer may at any time make changes in the scope or quantity of Products in which event an equitable adjustment will be made to any price, time of performance, and other provision of this Order, if appropriate. Any other change to ordered Products set forth in the applicable Order must be pre-approved in writing by Buyer, including any substitution of components, materials, manufacturers or specifications that would affect the applicable Order or Specifications. Should Seller change ordered Products without prior written approval from Buyer, without waiving any other rights against Seller, Buyer shall not be liable for charges related to such changes and may reject any Products not conforming with the Specifications or quantities set forth in the original Order.

6. Confidentiality

7. Proprietary Rights.

8. Warranties.

9. Security of the Supply Chain.

10. Compliance with Laws

11. Termination.

12. Indemnity

13. Insurance.

14. Limitation of Liability

15. Audit.

16. Governing Law; Jurisdiction

17. Notice.

All notices to Buyer shall be sent via registered mail or nationally recognized courier service to Buyer with email copy sent to: legal@rmsenergy.com.