Hunting Performance, Inc. - Terms and Conditions

Products and Services provided by HUNTING PERFORMANCE, INC. (HP) are expressly limited to the terms and conditions contained herein. Customer acknowledges that the price for equipment and services is based upon the warranties, remedies and limitations on liability as set forth herein.

1. Price - The price set forth on the face of this invoice is not a firm price. Seller reserves the right to change or alter the selling price to conform to changes in its published mill price in effect at the time the goods are ready for delivery.

2. Description of Product - "Product" includes any parts, tools or equipment leased, sold, loaned or delivered by HP to Customer pursuant to this agreement. Seller represents that the products conform to the description set forth on this invoice. In the event that such products are found not to conform to the description, Buyer shall notify Seller within 10 days after the products are delivered. Failure to give such notice or make any claim within 10 days after the products are delivered shall constitute an irrevocable acceptance of the products with respect to description.

3. Quantities - Quantities are estimates only and are subject to count upon delivery to the carrier. Any claim for shortages or excess shipments shall be made within 10 days after the products are delivered. All products may be shipped in partial shipments. Any backordered items shall be shipped within a reasonable time.

4. Shipping Terms, Transportation & Delivery - Shipping terms shall always be understood to be F.O.B. HP's stocking point (shipping point) unless otherwise specified by Customer in writing or formal purchase order. All Shipments will be packed for domestic delivery by common carrier to Buyer's place of business unless otherwise specified by Customer or required for safe transport of Product. Buyer agrees to pay all transportation, packing and shipment charges incurred after the goods are delivered to such carrier, including loading and unloading costs. If Seller pays such costs in advance, Buyer agrees to promptly reimburse Seller. Failure of Seller to notify Buyer of shipment shall not be grounds for rejecting the goods unless the goods are materially delayed. It shall be Buyer's obligation to insure goods in transit. Skidded charges will be 1% of total invoice value of item (excluding any applicable sales, use or other taxes). Export packing charges will be those incurred as invoices by designated freight forwarder and/or export packer.

5. Title: Risk of Loss - Title and risk of loss shall pass to Buyer as soon as the goods are deposited with the carrier or as soon as the goods depart HP's plant or stocking point (shipping point). HP shall not be held liable for the delays or failure in performance when the same are caused by strikes, labor disturbances, walkouts, riot, fire, embargoes or other conditions beyond HP's reasonable control. Customer shall pay all transportation charges. Common carrier rates shall apply. When Products are delivered by HP and common carrier rates do not apply, charges shall be in accordance with HP's current price list. Customer shall deliver written notice of a claim regarding shortages within thirty days of delivery. Any breach of this Agreement shall have no effect upon risk of loss, and section 34.1-2-510 of the Wyoming Uniform Commercial Code shall have no effect on this Agreement.

6. Payment Terms - Unless otherwise agreed in writing by the parties , all charges for Products, rental, services and transportation are net and payable in thirty, (30) days from the date of invoice in U.S. dollars. Interest will be charged on the unpaid balance of an invoice that is outstanding after sixty, (60) days from date of invoice at the rate of one and one-half percent (1-1/2%) per month or the maximum non-usurious rate allowed by law, which ever is higher. Cash discounts, if applicable, are available as specified on the face of this invoice. Only the sale amount is subject to discount. Freight, taxes, storage, shipping or other charges are not subject to discount for cash. ["Cash" means an invoice shall be paid on or before the discount date.] An invoice is "paid" upon receipt of good funds at Seller's post office box. All sales and use taxes shall be paid by Buyer and added to the purchase price.

7. Warranties and Liability - Seller's sole warranties are as to title and to description. Otherwise, any goods covered by this invoice are sold as is and Seller EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER FURTHER SHALL NOT BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND. Additionally, to the extent permitted by law, Seller shall have no liability for personal injuries, property damage, economic loss or other damage caused by or arising out of the use of the goods sold by Seller whether such liabilities are asserted on a theory of negligence, strict liability, other tort, contract or any other theory. HP's sole liability and Customer's exclusive remedy under this warranty is limited to the replacement of the product returned for inspection and proved to be defective. This warranty expires one year after the date of shipment of the Product from our stock point. The shipping expenses covering the round trip for the Product found to be defective will be paid by HP. All warranties, liabilities, and obligations of HP shall terminate if customer (1) installs, maintains or uses the Product for an unauthorized of unintended us; (2) misuses the Product; (3) fails to properly maintain and/or repair the Product; or (4) fails to perform its obligations and duties under this or any other agreement between the parties.

8. Risk of Operation - The Products provided hereunder are furnished and operated at Customer's risk; HP shall not be liable for any direct, contingent, incidental or consequential damages arising from use of such Products. In no event will HP be liable for (lost profits, well damages or any other incidental or consequential damages; (2) damages caused by Customer's failure to perform its responsibilities; (3) repair or alterations done without the prior written approval of HP or (4) damages to the Product caused by a third party. Well conditions which prevent satisfactory operations of such Product do not relieve Customer of its responsibilities for payment as provided in the sale of contract. Customer shall be responsible for, without limitation, (1) any sub-surface damage to the well and reserves; (2) surface damage to persons or property; (3) cost and liability arising from blowouts; and (4) all pollution liability which may result from the use of such Products or any service provided by HP (irrespective of the cause of such damage and whether or not occasioned by HP's negligence). Customer shall provide HP with all information about well conditions required for the safe and efficient performance of its products and services. Customer shall notify HP in advance of hazardous or unusual circumstances existing in the well.

9. Indemnity - Customer hereby agrees to defend, indemnify, and hold HP harmless from and against any and all claims, demands, causes of action, fines, penalties, expenses, consequential damages and losses on account of personal injury, death, or property damage whether based upon contract, tort, negligence, strict liability, misrepresentation of warranty arising out of incident to, in connection with, or directly or indirectly resulting from the design manufacture, sale, delivery, repair, or use of the Product or services provided in connection with this Agreement whether such injuries, death, or property damage, however caused, are by HP's sole or concurrent negligence, gross negligence, fault, or other theory of liability.

10. Damaged or Lost Tools - In the event that Customer elects not to purchase Lost in Hole Liability & Insurance and HP equipment is lost, destroyed, damaged beyond repair or abandoned, regardless of the cause (including "acts of God"), in transit or otherwise after delivery to Customer for transport to the well, and before its redelivery to HP, the Customer shall pay HP for such loss the applicable loss charge. Lost equipment subsequently recovered shall be returned to HP. All rights in and to equipment shall at all times remain that of HP, not withstanding payment of loss charges. Customer acknowledges that the terms and conditions of Lost in Hole Liability & Insurance offered by HP has been fully offered and explained to them by HP. All HP rental equipment is to be returned to HP by the Customer in the same good order and condition as when it left HP's premises, less ordinary wear and tear normal of field use within HP recommended environmental operating parameters. The Customer is liable for cost to repair equipment damaged beyond such normal wear and tear.

11. Proprietary Information - Product design, calculations and technical materials, plans, specification, and working drawings furnished by HP are and shall remain the property of HP. Customer agrees to maintain the confidentiality. Customer agrees it will not reuse any such proprietary information on any future project, nor will Customer make them or any duplicates thereof available for use on behalf of some other party, nor make same available to some other party. HP shall maintain field performance results obtained from its service in strict confidence, subject only to disclosure required by law or legal process.

12. Operation/Modification of Tools - HP equipment shall not be operated, serviced, altered, or in any way modified, without prior written approval of HP.

13. Change of Design - HP expressly reserves the right to change or modify the design and construction of any Product, in due course of its manufacturing procedure, without incurring any obligation of liability to furnish or install, such changes, modifications or improvements on Products previously or subsequently sold.

14. Patents - HP warrants that the use or sale of Products sold by it to Customer hereunder will not infringe patents of others by reason of the use of sale of such materials and apparatus per se. and hereby agrees to indemnify Customer against judgment for damages for infringement of any such patent, provided that Customer shall promptly notify HP in writing upon receipt of any claim for infringement, or upon the filing of any such suit for infringement, whichever first occurs, and shall afford HP full opportunity, at HP's option and expense, to answer such claim or threat of suit, assume the control of the defense of such suit, and settle or compromise same in any way HP sees fit. HP does not warrant that such Product (a) will not infringe any such patent when not of HP's manufacture, or especially made, in whole or in part, to the Customer's design specifications, or (b) is used or sold in combination with other materials or apparatus or used in the practice of processes, will not, as a result of such combination or use, infringe any such patent, and HP shall not be liable and does not indemnify Customer for damages or losses of any nature whatsoever resulting from actual or alleged patent infringement arising pursuant to clauses (a) and (b) above.

15. Third Party Charges - Customer shall be responsible to pay any charges for transporting HP equipment between the facility and the well. Customer shall also pay all other third-party charges as set forth in HP's price schedule.

16. Additional Claims - All claims for damages, errors or shortages in goods delivered by Seller to Buyer shall be made by Buyer within 10 days after the goods are delivered to Buyer. Failure to make any claim within 10 days shall constitute irrevocable acceptance of the goods in all respects. If Buyer rejects or revokes its acceptance of any goods tendered it must notify Seller in writing fully specifying all claimed defects and non-conformities. Failure to specify any defect or non-conformity will constitute a waiver of that defect or non-conformity.

17. Remedies - Seller shall have the right to stop goods in transit as provided by the Wyoming Uniform Commercial Code whether the goods are shipped to Buyer or some third party. In the event that any part of the goods delivered under this Agreement is not in conformity with this Agreement, Seller shall have 3 months to remedy any defects and Buyer's sole remedy shall be replacement or repair (if repair is practical) at Seller's option. Buyer shall not ship any goods back to Seller without Seller's permission, and in any event shall ship all goods back freight prepaid. Should the goods, in fact, be non-conforming, Seller will reimburse Buyer for prepaid freight, but only if approval to reship to Seller has been previously obtained as provided herein. Buyer's rejection of any goods or valid revocation of acceptance shall not be deemed to be a breach of the whole contract unless such breach shall go to the whole contract. Buyer shall have no security interest in the goods so rejected and expressly waives its right to a security interest under section 34.1-2-711(c) of the Wyoming Uniform Commercial Code.

18. Cancellation - In the event Customer cancels an order after it has been accepted by HP, Customer shall pay to HP as liquidated damages and not a penalty; (1) twenty-five percent (25%) of the net invoice and (2) the actual cost of transportation. No merchandise may be returned without the written consent of HP.

19. Modification of Orders - Orders as received constitute the complete and final agreement between HP and the Customer, and no other agreement in any way modifying any of the terms and conditions appearing will be binding upon the parties unless made in writing and signed by their authorized representatives. No employee or agent of HP or Operator is empowered to alter the above terms and conditions.

20. Default - Should Customer violate any terms and conditions of this agreement, become bankrupt, insolvent, go into receivership or should any creditor or other person attach or levy Customer's property or equipment, HP shall immediately have the right without notice to retake and remove its Products wherever they may be found. Customer shall defend, indemnify and hold HP harmless from any and all liens and encumbrances against the tools furnished hereunder and shall return the same promptly to HP free of any liens or encumbrances. A default hereunder by Customer shall not relieve Customer of its liability to pay to HP the compensation provided in this agreement.

21. Waiver - Failure of Operator to HP to enforce any of the above terms and condition shall not prevent a subsequent enforcement of such terms or conditions or be deemed a waiver of any subsequent breach. All of the above terms and conditions shall also apply in favor of any manufacturer or supplier of any Product supplied to Customer hereunder.

22. Force Majeure - The failure of HP to perform any of its obligation if occasioned by an "act of God" or the public enemy, fire, explosion, flood, drought, war, riots, sabotage, vandalism, accident, embargo, government priority, requisition or allocation or other action of any government authority, or as circumstance of like or different character beyond the reasonable control of such party, or by interruption or delay in transportation, inadequacy, shortage or failure of supply of materials or equipment, breakdowns, shutdowns for repairs, plant accidents, labor trouble, or by compliance with any order or request of the United States government or any officer, department, agency, instrumentality or committee thereof, or by compliance with the request of any manufacturer for material purposes of producing articles for national defense, shall excuse HP from its obligations under this agreement.

23. Entire Agreement - This Agreement is the complete and exclusive statement of the terms and conditions of the parties hereto and supersedes all other agreements of the parties with respect to the subject matter hereof. Provided, however, in the event the parties hereto have separately executed a purchase-sale contract extending for more than one year, the terms of such contract shall control over inconsistent terms herein. This agreement shall not be varied, supplemented, qualified, or interpreted by any prior course of dealing between the parties or by any usage of trade. Customer has not relied on any representations other than those contained in this agreement. This agreement may be amended only by a subsequent written instrument duly executed by Customer and by an officer of HP. Should any term or provision be declared invalid or unenforceable, all other provisions shall remain in effect.

24. Arbitration - The parties agree that all matters, disputes and claims shall be submitted to arbitration by a panel of three (3) arbitrators pursuant to the rules of the American Arbitration Association in Casper, Wyoming. In the event the purchase price has not been paid, it shall be a condition of any arbitration brought by Buyer that both (a) the amount in dispute be placed in an interest bearing escrow account in a bank authorized to do business in Wyoming and (b) the amount not in dispute be paid to Seller. The order of the arbitrators shall be binding on the parties and shall be enforceable in any court of competent jurisdiction.

25. Further Assurances - The parties hereto agree to execute such further documents as may be reasonably required to carry out the intentions of the parties under this Agreement.

26. Delay - Seller shall not be held liable for any delay in deliveries if such delays are due to governmental restrictions or controls, allocations, acts of God, force majeure, strike, labor dispute or other causes beyond the reasonable control of Seller.

27. Notice - All notices shall be in writing and shall be delivered (by mail, by hand, by telex, by telegram or facsimile) to the address set forth on the face of this invoice.

28. Cancellation - Buyer agrees that an order shall in no event be subject to cancellation or reduction or modification except by prior written consent of Seller and then only when Seller is fully reimbursed for its costs (including overhead and other indirect costs) for work performed, goods purchased by it or goods ordered by it to satisfy Buyer's order.

29. Assignment - This Agreement may not be assigned by the parties hereto except that Seller may assign this Agreement to any financial institution without the consent of Buyer as security for financing.

30. Intangible Rights - Seller shall have the right to list Buyer in its literature and advertising as a purchaser of Seller's goods for a reasonable time period. Seller agrees to hold Buyer harmless from any claims of patent infringement provided that Seller shall be afforded the opportunity to undertake the defense and provided that Buyer gives Seller prompt notice of all such claims.

31. Security - HP shall maintain a purchase money security interest in the goods covered hereby for any portion of the purchase price not paid at the time of delivery and shall retain this interest until Buyer has paid the full purchase price.

32. Limitations Period - No claim regarding any event, act or omission concerning this invoice may be asserted by either party hereto against the other party more than one (1) year after any event, act or omission that is within the scope of the Wyoming Uniform Commercial Code, or more than two (2) years after any other event, act or omission.

33. Governing Law - This agreement and the rights and obligations of parties hereunder shall be governed by the laws of the State of Wyoming without regard to applicable principles of conflict of law.

34. Survival of Terms - The terms and conditions contained in the sections captioned "Confidentiality", "Indemnity" and "Waiver" survives the termination of this agreement.

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Last Updated: 09/23/2002