Terms & Conditions

“Summit” shall sell and the Buyer shall purchase the Goods in accordance with any quotation or offer of Summit which is accepted by the Buyer, or any order of the Buyer which is accepted by Summit. These Terms and Conditions (the “Agreement”) shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted by Summit, or any such order is made or purported to be made by the Buyer.

Orders, whether oral or written, for the supply or sale of machinery, Personal Protective Equipment (“PPE”), equipment (“Equipment”), spare or replacement parts (“Parts”), services (“Services”), or rental of machinery or equipment (“Rental”) by Summit to its customers (each a “Buyer”) are subject to Summit’s written acceptance by an authorized representative.

Accepted orders are governed by: (a) these Terms and Conditions; (b) the written Proposal, if any; (c) the written Acknowledgment, if any; and (d) any change orders agreed to in writing (collectively, the “Agreement”). Buyer’s submission of a purchase order is deemed express acceptance of these Terms notwithstanding any inconsistent language in Buyer’s purchase order, which is hereby rejected. In the event of any conflict between a Proposal and an Acknowledgment, the Acknowledgment shall prevail.

Prices of Equipment, Parts, PPE, Services or Rental shall be as stated in the Proposal or Acknowledgment, or as otherwise agreed in writing by Summit. Unless otherwise specified, prices in a Proposal are valid for thirty (30) days from the date of issue. All quotations are EXW Summit’s premises (INCOTERMS 2010) and are subject to change with notice. Summit bears no responsibility for consular fees, fees for legalizing invoices, certificates of origin, stamping bills of lading, or other charges required by any country of destination. Charges will be added for factory preparation and packaging for shipment. Minimum freight and invoice charges in effect at the time of the Order shall apply.

Transaction Taxes. In addition to the charges due under this Agreement, Buyer is responsible for, and shall indemnify Summit against, any taxes, duties, charges, licenses, or fees imposed directly on Buyer as a result of this Agreement, including local, state, federal, foreign or international sales, use, value added tax (VAT), goods and services tax (GST), rental, import, export, personal property, stamp, excise and like taxes. If Summit pays any such tax, Buyer shall reimburse Summit within thirty (30) days of written demand. Buyer must provide Summit with export documents the appropriate tax authorities require.

Withholding Taxes. If Buyer is required to withhold compensation due to Summit, Buyer shall give Summit at least 30 days’ notice, pay withheld amounts to the appropriate government department on Summit’s behalf, and provide Summit with tax receipts within 30 days of the required withholding date.

Protest Rights. Buyer must promptly notify Summit of any demand or request for payment of any levies, charges, taxes or contributions for which Buyer would seek indemnity, so Summit has a reasonable opportunity to appeal, protest or litigate.

Cooperation. Buyer shall cooperate with Summit by supplying information Summit may require to comply with lawful demands, defend or settle claims, make tax applications or representations, and secure beneficial tax treatment. This obligation applies for two (2) years from the date of Summit’s final statement of account.

Unless alternate payment terms are agreed in writing, charges (including packing and transportation) are subject to a 30% down payment, with the balance payable prior to shipment via wire transfer to Summit’s bank account as indicated on Summit’s invoice. All payments are due in US Dollar. Interest shall be due on overdue accounts at the maximum rate allowed by law.

Partial shipments are invoiced as shipped, and each invoice is a separate account. Payments are due whether or not technical documentation or third-party certifications are complete at the time of shipment. Summit may recover reasonable attorneys’ fees and costs of collection. Summit reserves the right to suspend delivery or performance, without liability, where there is genuine doubt as to Buyer’s financial position or where Buyer is in default of any payment obligation.

In the event of Rental, should Buyer default, Summit may retrieve all Rentals described in the Proposal and collect rental payments due. If Buyer exercises a purchase option for rental equipment, rental charges continue until the later of (i) the end of the agreed rental period or (ii) 30 days prior to Summit’s receipt of the total purchase price plus all other rental amounts due.

Unless otherwise agreed in writing, delivery terms are EXW Summit’s premises (INCOTERMS 2010), except as modified by these Terms. Goods supplied from stock are subject to availability at the date of delivery. Partial shipments may be made as agreed. Stated delivery dates are approximate only and cannot be guaranteed. Summit has no liability for damages arising out of failure to keep a projected delivery date, irrespective of the length of the delay. If Buyer is unable to accept delivery when tendered, Summit may arrange storage at Buyer’s sole risk, and Buyer is liable for reasonable storage costs. Buyer is responsible for all shipping costs from Summit’s premises to the location designated by Buyer and for any return shipping costs.

If either party is unable, by reason of Force Majeure, to carry out any of its obligations under this Agreement (other than the obligation to pay money when due and indemnification obligations), those obligations shall be suspended on such party giving notice and particulars in writing within a reasonable time after the occurrence of the cause relied upon. Force Majeure includes acts of God, laws and regulations, government action or inaction, war, civil disturbances, strikes and labor problems, vendor or carrier delays, lightning, fire, flood, washout, storm, breakage or accident to equipment or machinery, shortage of raw materials, and any other causes not reasonably within the affected party’s control. Summit shall be paid its applicable standby rate, if any, during any such Force Majeure event.

All of Summit’s documents, drawings and like information shall be returned to Summit upon Buyer’s request for cancellation. The following minimum cancellation charges apply:

• 25% of Agreement value if canceled within 10 days after the date of placing the order.
• 50% of Agreement value if canceled after 30 days.
• 100% of Agreement value if canceled after 45 days from the date of placing the order.
• 100% of the value of any non-standard items (items not billed for stock or built to customer specifications).

In the event of Rental, the Terms and Conditions of the Rental Agreement will apply. Buyer shall verify the amount of the cancellation charges prior to canceling an order.

For purchased goods, ownership and risk of loss pass to Buyer upon the earlier of (a) Summit’s delivery of the goods, or (b) invoicing by Summit where Buyer is unable to accept the scheduled date. Summit retains a security interest in the goods until the purchase price has been paid. Summit accepts no responsibility for damage, shortage or loss in transit; claims for any such damage, shortage or loss must be made by Buyer on the carrier.

In the event of Rental, Buyer assumes all risk and liability, whether or not covered by insurance, for loss or damage to the Rental machinery, PPE or equipment. Title shall remain with Summit at all times. Buyer acquires no ownership or property rights to the Rental machinery or equipment except the right to use it subject to the terms of this Agreement.

New Equipment / Parts / PPE. For the benefit of the original user, Summit warrants, for twelve (12) months from the invoice date, that new Equipment, Parts and PPE of its own manufacture shall conform to the material and technical specifications set forth in the Agreement. Goods manufactured by others are sold “as is,” except to the extent the manufacturer honors any applicable warranty. Secondhand goods are sold “as is.” If new Equipment or Parts fail to conform, Summit will, at its option and as Buyer’s sole remedy, either repair or replace them with the type originally furnished.

Service. Summit warrants that Services shall conform to the material aspects of the specifications. Summit shall re-perform non-conforming Services, provided Buyer notifies Summit before Summit’s departure from the worksite.

Summit’s warranty obligations shall not apply if non-conformity or failure was caused by (a) Buyer’s failure to properly store or maintain the equipment or parts; (b) unauthorized modification, repair or service of the equipment or parts by Buyer; (c) use of replacement parts not manufactured by Summit; or (d) use or handling of the equipment by Buyer inconsistent with Summit’s recommendations. Warranty obligations terminate if Buyer fails to perform its obligations under this or any other Agreement, or fails to pay any charges due to Summit.

This Article sets forth Buyer’s sole remedy and Summit’s exclusive obligation with regard to non-conforming Equipment, Parts, Services or Rental. Except as expressly provided here, Summit makes no other warranties or representations of any kind, express or implied, and Summit disclaims the implied warranties of merchantability and fitness for a particular purpose.

Summit expressly reserves the right to change, discontinue or modify the design and manufacture of its products without obligation to furnish, retrofit or install products previously or subsequently sold.

With Summit’s written approval, unused, incorrectly shipped, or “Made for Stock” goods ordered incorrectly may be returned for credit (subject to a restocking fee), provided the item is in new condition, of current manufacture and catalog specifications, and written request is received within one (1) month after the receiving date. Non-standard goods are not returnable for credit except with Summit’s prior written agreement.

Requests for return must show the original purchase order number, invoice number, description of material, and date of purchase. Return does not relieve Buyer of the obligation to pay against Summit’s invoice. Any credit or refund will be issued following Summit’s receipt of the goods; credit is a merchandise credit applicable only against future purchases and is in Summit’s sole discretion.

Summit means Summit, its parent, subsidiary or related companies, its and their working interest owners, co-lessees, co-owners, partners, joint ventures, and their respective officers, directors, employees, consultants, agents and invitees. Buyer has the same meaning. Claims means all claims, demands, causes of action, liabilities, damages, judgments, fines, penalties, awards, losses, costs and expenses (including attorneys’ fees and litigation costs) arising out of or related to the performance of or subject matter of this Agreement, including property loss or damage, personal or bodily injury, sickness, disease or death, loss of services or wages, or loss of consortium or society.

(a) Summit shall release, indemnify, defend and hold Buyer harmless from Claims involving personal or bodily injury, sickness, disease or death of any member of Summit or Summit’s subcontractors, agents or invitees, and Claims for damage to property owned, leased, rented or hired by any of them.

(b) Buyer shall release, indemnify, defend and hold Summit harmless on a corresponding basis for Buyer’s own group.

(c) Neither party shall be liable to the other, and each releases the other, for any indirect, special, punitive, exemplary or consequential damages or losses — including lost production, lost revenue, lost product, lost profit or lost business opportunities — whether or not foreseeable at the date of this Agreement.

(d) The exclusions of liability, releases and indemnities apply without regard to the cause, including pre-existing conditions (patent or latent), unseaworthiness of any vessel, imperfection of material, defect or failure of products, breach of representation or warranty, ultrahazardous activity, strict liability, tort, breach of contract, breach of duty, breach of any safety requirement or regulation, or the negligence or other legal fault of any person.

(e) Redress under the indemnity provisions is the exclusive remedy available to the parties for the matters, claims, damages and losses covered by those provisions.

Upon written request, each party shall furnish certificates of insurance evidencing adequate insurance to support its obligations hereunder. Such policies shall (a) be primary to the other party’s insurance; (b) include the other party, its parent, subsidiary and affiliated or related companies, and its and their respective officers, directors, employees, consultants and agents as additional insured; and (c) be endorsed to waive subrogation against the other party.

For Equipment, PPE, Parts, Services or Rental provided by Summit, this Agreement shall be governed by and interpreted in accordance with the substantive laws of the State of Texas, excluding conflicts and choice of law principles. Any dispute, action or proceeding arising out of or relating to this Agreement must be brought in a state or federal court sitting in Harris County or Fort Bend County, Texas, and each party irrevocably submits to the exclusive jurisdiction of those courts and waives any objection to venue or convenience of forum.

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

Summit retains the right to arbitrate any and all disputes that may arise in connection with the provision of Equipment, PPE, Parts, Services or Rental.

All proprietary information such as design, trademarks and logos used in connection with the Equipment, PPE, Parts, Services or Rental either purchased or used will not infringe patents of others by reason of the use or sale of such Equipment, PPE or Parts per se, and Summit agrees to hold Buyer harmless against judgment for damages for infringement, provided Buyer promptly notifies Summit in writing and affords Summit full opportunity to answer the claim, assume control of the defense, and settle or compromise as Summit sees fit. Summit does not warrant against infringement (a) when the goods are not of Summit’s manufacture or are specially made to Buyer’s design specifications, or (b) when used in combination with other materials or apparatus, or in the practice of processes. This article states the entire responsibility of Summit concerning patent infringement.

By acceptance of delivery under this Agreement, Buyer warrants it has complied with all applicable governmental and regulatory requirements of the United States and will furnish Summit with such documents as may be required. Summit warrants and certifies that in the performance of this Agreement it will comply with all applicable statutes, rules, regulations and orders in effect at the time of execution, including laws pertaining to labor, wages, hours and other conditions of employment and applicable price ceilings. Summit will not provide any certification or otherwise act in any manner that may cause Summit to be in violation of applicable United States law, including the Export Administration Act of 1979 and the U.S. Foreign Corrupt Practices Act of 1977. All Orders are conditional upon granting of any required export licenses or import permits. Buyer obtains such licenses and permits at its own risk and remains liable to accept and pay for the material if licenses are not granted or are revoked.

Each party shall maintain all data, information and other documents (collectively, “Confidential Information”) obtained from the other party in strict confidence. This does not deprive the receiving party of the right to use or disclose information that:

• is, at the time of disclosure, known to the trade or public;
• later becomes known to the trade or public through no fault of the receiving party;
• the receiving party possessed before receipt from the disclosing party, as evidenced by its written records;
• a third party with an independent right discloses in good faith;
• the receiving party independently develops, as evidenced by documentation; or
• is required to be disclosed by court order or governmental agency, provided the receiving party gives timely notice to the disclosing party so it may contest the order.

If Summit owns copyrights, patents or patent applications on any technology related to the Equipment, Parts, PPE, Services or Rental furnished hereunder and makes any improvements, Summit shall own all such improvements, including drawings, specifications, patterns, calculations, technical information and other documents.

It is expressly understood that Summit is an independent contractor, and that neither Summit nor its principals, parties, employees or subcontractors are servants, agents or employees of Buyer.

Unless otherwise indicated, rental rates in Summit’s Proposal are on a per weekly basis and apply to each piece of Equipment, PPE or part rented. Summit represents that it has fully inspected the Rental Equipment, PPE and parts and that they are in good condition and repair, fully acceptable for use as specified in the Agreement, free of encumbrances or liens, and that Summit is authorized to enter into and execute this Agreement.

Buyer shall use the Rental Equipment, PPE and parts in a careful and proper manner and comply with all applicable laws, ordinances and regulations. Buyer, at its sole cost, shall maintain insurance against loss, theft, damage or destruction equal to or greater than the new replacement price of the Rental Equipment, PPE and parts.

At the expiration of the rental term, Buyer will return the Rental Equipment, PPE and parts, at its sole cost, to the facility designated by Summit, in good working condition (reasonable wear and tear excepted). If Summit determines the equipment is materially damaged or not in good working condition (reasonable wear and tear excepted), any service, inspection or spare-parts charges required to bring it to good working condition will be charged back to Buyer.

Failure of Buyer or Summit to enforce any of the terms of this Agreement shall not prevent subsequent enforcement of such terms or be deemed a waiver of any subsequent breach. If any provision is unenforceable or in conflict with applicable governing country, state, province or local laws, the validity of the remaining provisions shall not be affected, and this Agreement shall be construed as if such provisions supersedes all prior oral or written agreements or representations. Buyer acknowledges that it has not relied on any representations other than those contained in this Agreement. This Agreement shall not be varied, supplemented, qualified or interpreted by any prior course of dealing or usage of trade and may only be amended by an agreement executed by an authorized representative of each party.

It is understood, acknowledged, and agreed by Buyer that this Agreement in its entirety is an integral part of all Proposals, Quotations, Packing Slips and Invoices issued by Summit to the Buyer and does not require Buyer’s signature to become effective.