GENERAL TERMS AND CONDITIONS
(Revision B – 2/14/2020)
THESE GENERAL TERMS AND CONDITIONS (these “General Terms”) apply to the attached purchase order (“Purchase Order”) between Black Mountain Sand, LLC (“Company”) and the Vendor stated in the Purchase Order (“Vendor”). Company and Vendor may be referred to each individually as a “Party” and collectively as the “Parties”.
- Vendor’s Obligations. Vendor shall provide goods and services (the “Goods” and “Services”, respectively) to Company in accordance with and as set forth in the Purchase Order that Company issued to Vendor in connection with these General Terms for such Goods or Services.
- Changes. Vendor may not substitute any goods or services for Goods or Services ordered and may not make changes to any specifications, country of origin, manufacturing location, quality assurance process, components or production process for any Good without prior written consent of Company. Company may at any time, in its sole discretion, modify the quantity, specification, Goods, and delivery dates in the Purchase Order, or suspend the Purchase Order by submitting written notice to Vendor. No charges will accrue to Company for any such modification or suspension except upon written consent of Company.
- Cancellation. Company may cancel this Purchase Order, in whole or in part, at any time prior to shipment of the Goods or commencement of the Services, as applicable, without liability to Vendor, and at any time after shipment of the Goods or commencement of the Services, as applicable, with liability in the amount of a reasonable cancellation fee as determined by Company. Vendor shall refund to Company all pre-paid amounts within thirty (30) days of cancellation. Vendor may not cancel a Purchase Order except upon advance written consent of Company.
- Standards of Performance. Vendor shall provide the Goods and perform Services in a good and workmanlike manner according to the specifications set forth the Purchase Order and in accordance with all applicable laws.
- Delivery; Title to Goods. Delivery of the Goods and performance of the Services shall occur at the time, place and in accordance with the terms set forth in the Purchase Order and these General Terms. Unless stated otherwise the in the Purchase Order, title to and risk of loss for the Goods shall pass to Company upon acceptance. Use of a portion of the Goods for testing shall not constitute acceptance. Vendor shall promptly provide to Company all information reasonably necessary to make any necessary filings, comply with applicable laws, or otherwise requested by Company.
- Independent Contractor. Vendor shall at all times be an independent contractor, and none of Vendor’s personnel or subcontractors shall be deemed to be employees of Company. Nothing contained herein shall be deemed to create a partnership, joint venture, or any other association between the Parties.
- Subcontractors. Vendor may, upon advance written consent of Company, provide the Services through subcontractors, but in no event shall Vendor’s utilization of subcontractors (i) create any sort of relationship between Company and any subcontractor, (ii) limit or diminish the obligation of Vendor to provide the Services in accordance with these General Terms or the Purchase Order, or (iii) release Vendor from any obligation hereunder.
- Vendor’s Supplies, Equipment and Personnel. Vendor shall furnish all equipment and supplies to be used by Vendor and that are necessary to provide the Goods and Services, and shall maintain any equipment in good condition and repair. Vendor shall employ in providing the Goods and Services only competent and properly licensed and permitted personnel and subcontractors.
- Safety Requirements. If any of the Services are to be performed, or any of the Goods delivered, on or at any of Company’s property, Vendor shall at times while on Company’s property require that all of Vendor’s or its subcontractor’s personnel, including any employees, agents, representatives, or independent contractors, comply with Company’s health, safety, and environmental directives, including the wearing of any personal protective equipment. If any of the Services are to be performed on or at any of Company’s property, Company will provide site specific training only, and Contractor shall ensure all of Contractor’s and its subcontractor’s personnel have received such site specific training. Such personnel shall, if requested by Company, furnish documentation of completion of such training. All other training that may be necessary or desirable for the performance of the Services shall be for the sole account of Contractor. Contractor’s and its subcontractor’s personnel must obtain and maintain during the Term of this Agreement, the necessary Mine Safety and Health Administration (“MSHA”) certificates and training (including pursuant to MSHA Part 46, new and experienced miner training, annual refresher trainings, and any task specific training) and other trainings as required by applicable law and Company’s policies, and such persons shall furnish to Company, upon Company’s request, evidence of current certifications and trainings, training plans and a copy of Contractor’s safety policy. Any of Contractor’s and its subcontractor’s personnel who are performing Services at any of Company’s property shall, if requested by Company, submit to a drug or alcohol screening, which screening may be required prior to beginning Services and after any accidents.
- Vendor’s Warranties.
- With respect to the Services, Vendor warrants that the Services have been performed in accordance with the terms of, and to the specifications, set forth in the Purchase Order, shall be free of defects in material and workmanship for a period of one (1) year after the conclusion of any discrete task for which Services have been provided.
- With respect to the Goods, Vendor warrants that the Goods provided are (i) new, unless otherwise provided for in the applicable Purchase Order, (ii) are free from defects in materials and workmanship, (iii) conform to the specifications set forth in the Purchase Order, and (iv) title to the Goods will pass to Company free of any liens and encumbrances.
- EXCEPT AS EXPRESSLY PROVIDED HEREIN, VENDOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PURPOSE.
- Inspection; Audit. Company may, prior to accepting delivery of the Goods or Services, inspect the Goods and Services to determine whether the Goods and Services have been provided or performed in accordance with the terms of the Purchase Order. Company’s inspection or failure to inspect the Goods or Services, or the failure to discover defects in or raise issues concerning the Goods or the Services, does not relieve Vendor of any of Vendor’s obligations or liabilities or raise any defense to the insufficiency of Vendor’s performance of the Services or provision of the Goods. Company may inspect, at any reasonable time during or subsequent to the performance of the Purchase Order, any of Vendor’s books, records, inventory, tooling, and plants to assure compliance with the Purchase Order or applicable law.
- Non-Conforming Goods or Services. If any Goods or Services do not conform to the requirements or the specifications set forth in the Purchase Order, Company may, after providing notice to Vendor, require Vendor to replace the Goods or re-perform the Services at no additional cost to Company.
- Price; Compensation. As full and complete compensation for the Goods and Services provided by Vendor hereunder, Company shall pay Vendor in accordance with the rates or prices set forth in the Purchase Order. Rates and prices set forth in the Purchase Order are inclusive of all handling, taxes, duties, fees or charge of any kind except for applicable sales and use taxes. Any such taxes which Vendor is obligated to collect shall be added to the invoice as a separate charge to be paid by Company. Amounts due shall be payable monthly within thirty (30) days after receipt by Company of Vendor’s invoice for the Goods supplied or Services performed, or as otherwise stated in the Purchase Order. In the event that Company shall dispute any invoice, Company shall timely pay any undisputed portion of such invoice.
- No Lien. Vendor shall have no vendor’s, materialmens’ or other lien, statutory or otherwise, over any property of Company, Company Group or any of Company’s customers, and Vendor hereby waives any right to any vendor’s, materialmens’ or other lien, statutory or otherwise, upon any property of Company, Company Group or Company’s customers. Vendor shall keep any property of Company, Company Group or Company’s customers free of any lien or encumbrance created by any subcontractor of Vendor, or by any of Vendor’s personnel. Company may withhold payment of any sum due Vendor until such time as any lien or encumbrance prohibited hereby is removed or caused to be removed by Vendor, and Company may offset against any sums due Vendor hereunder all Claims and Losses suffered by Company as a result of any such lien or encumbrance prohibited hereby that is not promptly removed or caused to be removed by Vendor.
- Insurance. Where Vendor will be performing Services, Vendor shall procure and maintain during the time for performance the following insurances and amounts thereof: (a) worker’s compensation insurance in statutory amounts covering Vendor and its employees; (b) employer’s liability insurance with a combined single limit of not less than $1,000,000.00 per occurrence; (c) commercial general liability insurance with a combined single limit of not less than $1,000,000.00 per occurrence; (d) automobile liability insurance covering all owned and non-owned and hired automotive equipment with a combined single limit of not less than $1,000,000.00; and (e) any additional insurance as may be required by applicable Federal, state or local laws, orders, ordinances, rules and regulations. If requested by Company, Vendor shall provide to Company a certificate of insurance and copies of required insurance policies.
- Indemnification. WHERE VENDOR IS PERFORMING SERVICES, VENDOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS COMPANY AND COMPANY’S AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS AND CONTRACTORS (EXCEPT FOR VENDOR HEREUNDER) (TOGETHER, “COMPANY GROUP”) FROM AND AGAINST ANY AND ALL DEMANDS, CLAIMS, JUDGMENTS, OBLIGATIONS, LIABILITIES, LIENS, CAUSES OF ACTION, LAWSUITS, ARBITRATIONS, MEDIATIONS, INVESTIGATIONS OR PROCEEDINGS (WHETHER AT LAW OR IN EQUITY) (TOGETHER, “CLAIMS”) AND LOSSES, DAMAGES, COSTS, EXPENSES, LIABILITIES, FINES, PENALTIES OR JUDGMENTS OF WHATEVER KIND OR CHARACTER INCURRED BY A PERSON OR PARTY WITH RESPECT TO A CLAIM, INCLUDING REASONABLE ATTORNEYS’ FEES, COURT COSTS AND OTHER REASONABLE COSTS AND EXPENSES OF LITIGATION, AS SUCH MAY BE AWARDED BY A COURT (TOGETHER, “LOSSES”), ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY VENDOR OF THE SERVICES, AND WITH RESPECT TO ANY BODILY OR PERSONAL INJURY TO, OR DEATH OF, ANY PERSON, OR DAMAGE TO REAL OR PERSONAL PROPERTY.
- Force Majeure. A Party shall be excused from performance of any obligation of either Party under the Purchase Order to the extent that the Party’s inability to perform is caused by Force Majeure (defined below), provided that Force Majeure shall not apply to and excuse the payment of money then due and owing. “Force Majeure” means any event or circumstance or combination of events or circumstances that materially and adversely affects or prevents a Party from performing its obligations in accordance with these General Terms or the terms of the Purchase Order, but only if and to the extent that such events and circumstances are not within the affected Party’s reasonable control. Force Majeure events shall include, act of God, fire, storm of an unusual or extraordinary nature, working conditions rendered unsafe by weather, flood, hurricane, tornado, earthquake, epidemic or other natural disaster, action, delay or inaction of any governmental authority, war, invasion, emergency, embargo, sanction, sabotage, insurgency, terrorism, civil war, riot or insurrection of any kind, or labor strike; provided that, notwithstanding the foregoing, Force Majeure shall not include (i) failure or inability to perform of any subcontractors of or parties contracting with the Party claiming Force Majeure, unless the circumstances thereof would themselves have been brought about by Force Majeure, (ii) inability to sell or lack of favorable market conditions for oil, natural gas or other hydrocarbons, or (iii) economic hardship. Each Party shall use commercially reasonable efforts to cure, minimize, mitigate or remedy the effects of Force Majeure. The Party claiming Force Majeure shall as soon as practicable after the occurrence of any event claimed to constitute Force Majeure give written notice to the other Party of the precise nature of the events or circumstances claimed as Force Majeure, advising of the steps, if any, taken by the affected Party to remedy the situation. The Party claiming Force Majeure shall give written notice as soon as practicable to the other Party of the cessation of such Force Majeure.
- Confidentiality. Any information belonging to a Party that is confidential and disclosed to the other Party in the course of performance of its obligations under the Purchase Order or has been disclosed during the negotiations leading up to the Purchase Order, including the Purchase Order itself (collectively, the “Confidential Information”), shall be held in confidence and shall not be disclosed to others without the written approval of the disclosing Party. Confidential Information is not information that is (i) already known to the receiving Party at the time of disclosure by the disclosing Party (ii) now or hereafter becomes available within the public domain other than as a result of a breach of these General Terms, (iii) received by a Party under no obligation to keep the Confidential Information confidential, or (iv) independently developed by a Party without reliance on Confidential Information. A Party shall have the right to disclose Confidential Information without the consent of the disclosing Party to its lenders, counsel, advisors, consultants, accountants, auditors, operators, service providers, officers, directors, members, and other persons of responsibility, in each case who have a need to know the Confidential Information for the purpose of performing its obligations under the Purchase Order, provided that such persons agree to keep the Confidential Information confidential, and the Party shall be responsible for any breaches of this confidentiality obligation by such persons. A Party shall also have the right to disclose Confidential Information without the consent of the disclosing Party in connection with a subpoena, interrogatory, request for production, civil investigative demand or other such legal process issued by any court or administrative, legislative, investigative or regulatory body, but only to the extent necessary to fully respond thereto and after providing prior written notice to the disclosing Party. Upon the reasonable request of the disclosing Party, the receiving Party shall, in its sole discretion, either return the Confidential Information or destroy it, provided that the receiving Party may retain a record copy of Confidential Information, but otherwise subject to the provisions of this Section 18.
- Notices. Any notice or other communication hereunder shall be in writing and shall be deemed given and effective when delivered to a Party (i) personally, or (ii) by U.S. mail, electronic transmission or by overnight carrier, with any necessary postage prepaid, and properly addressed to a Party at its address stated in the Purchase Order, or to such other address as such Party may designate by written notice to the other Party in accordance with the provisions of this Section 19.
- Governing Law; Venue. THESE GENERAL TERMS AND THE PURCHASE ORDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, EXCEPT FOR CONFLICTS OF LAWS RULES OR PRINCIPLES CALLING FOR APPLICATION OF THE LAWS OF ANOTHER STATE. EACH OF THE PARTIES IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF THE STATE OR FEDERAL COURTS OF TARRANT COUNTY, TEXAS AS THE EXCLUSIVE FORUM AND VENUE FOR RESOLVING ANY DISPUTES, AND EACH OF THE PARTIES IRREVOCABLY WAIVES ANY OBJECTION TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS.
- Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY TYPE, INCLUDING LOSS OF GOODWILL, PROFITS OR BUSINESS OPPORTUNITY, IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, JOINT OR SEVERAL, OR STRICT LIABILITY) ARISING UNDER THESE GENERAL TERMS OF THE PURCHASE ORDER, PROVIDED THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO VENDOR TO DEFEND AND INDEMNIFY COMPANY OR COMPANY GROUP FOR ANY CLAIMS OF THIRD PARTIES AGAINST COMPANY OR COMPANY GROUP, EVEN IF SUCH CLAIMS INCLUDE CLAIMS FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES.
- No Assignment. Company may assign the Purchase Order without consent of Vendor. Vendor may not assign the Purchase Order without Company’s prior written consent.
- Waiver. No waiver by a Party of any breach by the other Party of any provision of this these General Terms or the Purchase Order shall be deemed a waiver of any preceding or succeeding breach of the same or any other provisions hereof. No delay or failure by a Party to exercise or enforce at any time any right or provision of these General Terms shall be considered a waiver thereof.
- Entire Agreement. These General Terms, the Purchase Order, and any existing master purchase agreement between Company and Vendor (an “MPA”) constitute the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior oral or written agreements or understanding of the Parties. In the event of an express and irreconcilable conflict between these General Terms and the terms of an existing MPA between Company and Vendor concerning the subject matter herein, the terms of the MPA shall control. These General Terms and the Purchase Order may not be amended except in writing executed by an authorized representative of Company.
- Successors and Assigns; No Amendment. These General Terms and the Purchase Order shall be binding upon and inure to the benefit of the respective successors and permitted assigns of the Parties. No amendment or modification to these General Terms or the Purchase Order shall be effective unless in writing and signed by an authorized representative of each Party.
- Survival. The rights and obligations of the Parties shall survive any expiration or termination for so long as necessary to give effect to the intent of the Parties, but in no event to exceed any applicable statutes of limitation; provided that the provisions of Section 18 shall survive for a period of two (2) years after such expiration or termination.
- Severability. If any provision of these General Terms and the Purchase Order shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be deemed severed from these General Terms and the Purchase Order, and the legality, validity and enforceability of all other provisions shall not be affected thereby.
- No Third Party Beneficiaries. These General Terms and the Purchase Order shall be for the sole benefit of the Parties and their respective successors and permitted assigns only, and shall not be construed to create third party beneficiary rights in any third party, except to the extent that Company Group is entitled to defense and indemnity under Section 16.
- Counterparts. These General Terms and the Purchase Order may be executed in one or more counterparts, including by electronic transmission, each of which shall be deemed an original, but all of which shall constitute one and the same document.
(Revision A – 4/19/2021)
All invoices must be submitted electronically through OpenInvoice (“OI”). If the Supplier’s company is already registered, please inform the Black Mountain Sand’s AP and they will assist with enabling the company’s account to submit Invoices through OI.
If your company has not already created an account, please go to https://www.openinvoice.com/docp/public/registerBuyerText/
Once the registration has been completed, please send an email to Felicia Harris in AP, along with the exact company name the Supplier registered under, to get the account enabled. Once the account is enabled, instructions will be provided with information on submissions and information that will be required on submission. The vendor can begin to learn how to use its OI account to submit invoices for payment.
Please contact AP for any issues or questions on invoice submissions.
Felicia Harris – Accounts Payable
Office – 817-632-6197
For further questions on how to use OI, please feel free to call or email Felicia; or OpenInvoice has instructional videos and user guides. From any screen, click on the Help icon (question mark) at the top right of the screen. From the menu, select OpenInvoice Documents.
For any log-in or website issues please contact OpenInvoice Support.
Available: Mon – Fri 7:00 AM (MT) – 5:00 PM (MT)
Getting Started for Contractor:
Login to OI and follow these links to watch training videos to help Contractor’s personnel understand how to use the OI homepage, submit Invoices, and more. (If the links do not work, you can copy and paste them in to your web browser.)
- Basic User Guide:
- Sign-In and Dashboard Tutorial: https://oildex.wistia.com/medias/6jn4z38j4y
- Explains information, links, and actions found on the main page.
- Creating and Submitting Invoices:
- Create from a File: https://oildex.wistia.com/medias/p02ptvw56y
- Create from Commercial Terms or Purchase Order: https://oildex.wistia.com/medias/w14mhaxhxp
- Create from a Field Ticket: https://oildex.wistia.com/medias/0w83a1k19m
- Add Attachments and Invoice Copies: https://oildex.wistia.com/medias/lsclxg2mbw
- For any invoice that falls within an approved Commercial Terms or Purchase Order, Contractor MUST notate the company issued Commercial Terms or PO number on each Invoice that is submitted.
- For any invoice that falls within an approved Commercial Terms, Contractor MUST attach the Order approval and signed delivery or service ticket.
- For any invoice that falls within an approved Purchase Order, Contractor MUST attach the signed delivery or service ticket.
- Company Invoice Submission Guidelines (PDF): https://www.openinvoice.com/docp/api/resourcecenter/v1/resources/102807/file/Supplier%20Guidelines%20_%20BlackMountain.pdf
- OpenInvoice Admin Setup (Adding products/services, users, etc): https://oildex.wistia.com/medias/rfi6n5myaj
- Invoice Description:
- When submitting invoices, in the General Information section, Contractor MUST add a brief one-line statement in the Description field that clearly explains the scope of services being rendered or Goods that were provided.
- Invoice MUST include itemized details of the Goods provided or services rendered.
- For services spanning over a period of time, Contractor MUST include the date range of those services within the Description field.
When uploading, submit to the site that products or services are being purchased for, as follows:
- Site – Black Mountain Sand, LLC = Permian
- Property: Vest, El Dorado or Sealy Smith
- Site – Black Mountain Sand Eagle Ford LLC = Eagle Ford
- Property: Carrizo Springs or Bigfoot
- Site – Black Mountain Sand Midcon LLC = SCOOP/STACK Oklahoma
- Property: Blaine
For further questions on how to use OI, Contractor can find training videos and PDFs in the Resource Center. From any screen, hover over the Help icon (question mark) at the top right of the screen. From the drop-down menu, select Resource Center. Then click the drop-down arrow next to OpenInvoice Documents, there Contractor can find videos and PDFs of user guides to help Contractor.