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power vehicles or equipment , provided that events beyond Customer' s control shall not excuse Customer from making payment for services rendered by
<br /> Tanknology hereunder . Tanknology will not be in default unless it fails to cure any breach of its obligations hereunder as promptly as reasonably possible
<br /> after receiving written notice of the breach from Customer EXCEPT FOR INFRINGEMENT OF THE OTHER PARTY ' S INTELLECTUAL PROPERTY
<br /> RIGHTS OR BREACH OF CONFIDENTIALITY OBLIGATIONS , TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL
<br /> EITHER PARTY BE LIABLE FOR PUNITIVE , EXEMPLARY , SPECIAL , INDIRECT , INCIDENTAL OR CONSEQUENTIAL DAMAGES , INCLUDING
<br /> DAMAGES RESULTING FORM LOSS OF PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE
<br /> TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT , HOWEVER CAUSED , UNDER ANY THEORY OF LIABILITY , EVEN IF SUCH PARTY
<br /> KNOWS , OR HAS REASON TO NOW, OF THE POSSIBILITY OF SUCH DAMAGES , AND ( B ) IN NO EVENT WILL TANKNOLOGY' S TOTAL LIABILITY
<br /> ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT FROM ANY
<br /> CAUSE WHATSOEVER EXCEEE INSURANCE COVERAGE IN PLACE BY TANKNOLOGY TO CUSTOMER UNDER THIS AGREEMENT FOR THE SPECIFIC
<br /> SERVICES WITH RESPECT TO WHICH THE PARTICULAR CLAIMS AND DAMAGES RELATE , REGARDLESS OF THE CLAIMS , DAMAGES AND
<br /> CAUSES OF ACTION ( INCLUDING , WITHOUT LIMITATION , ACTIONS FOR BREACH OF CONTRACT , BREACH OF WARRANTY , STATUTORY CLAIMS
<br /> [ INCLUDING , WITHOUT LIMITATION , UNDER THE TEXAS DECEPTIVE TRADE PRACTICES ACT AND SIMILAR STATUTES OF OTHER STATES ] ,
<br /> CLAIMS , AND CLAIMS FOR INDEMNITY) AND WHETHER OR NOT TANKNOLOGY KNOWS , OR HAS REASON TO KNOW, OF THE POSSIBILITY OF
<br /> SUCH DAMAGES .
<br /> 8 Warranty Tanknology will perform the Services in a professional and workmanlike manner . To request warranty service , Customer shall promptly , and in
<br /> any event within ten business days after non - conforming Services have been performed , notify Tanknology in writing that the Services did not conform to
<br /> this warranty and request that Tanknology re- perform the Services or , at Tanknology ' s election , refund the amount paid for the non -conforming Services .
<br /> Tanknology may elect , in its sole and absolute discretion , to re- perform non - conforming Services or refund the amount paid by Customer with respect to
<br /> non - conforming Services . This warranty , and Customer' s rights under this warranty , will not apply if Customer is in breach of any of Customer' s obligations
<br /> under this Agreement , including but not limited to Customer' s failure to timely pay all amounts due to Tanknology as provided for in this Agreement . The
<br /> remedy set forth in this section is Customer' s sole and exclusive remedy , and the full extent of Tanknology ' s liability , for Tanknology ' s Services that do not
<br /> conform to this warranty EXCEPT AS EXPRESSLY STATED IN THIS SECTION , TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
<br /> TANKNOLOGY EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES , PRODUCTS , EQUIPMENT
<br /> AND THIS AGREEMENT , INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
<br /> PARTICULAR PURPOSE
<br /> 9 Arbitration All disputes , if any , arising under or in connection with this Agreement that are not resolved by negotiation shall be resolved exclusively by
<br /> arbitration . Either party , after ten ( 10 ) days notice to the other party identifying with particularity those areas in dispute , may submit a dispute to
<br /> arbitration . All such arbitrations shall be held in Austin , Texas under the Arbitration Rules of the American Arbitration Association ( "AAA" ) . The arbitration
<br /> panel shall consist of three arbitrators , unless otherwise agreed to by the parties . All arbitrators must he independent of , and not affiliated with , any of the
<br /> parties or their affiliates . The parties shall each nominate an arbitrator pursuant to the AAA Arbitration Rules within thirty ( 30 ) days of the notice
<br /> submitting the dispute to arbitration and the nominated arbitrators shall agree on the third arbitrator within thirty ( 30 ) days after both of them have been
<br /> nominated . The parties agree that the award of the arbitration shall be the sole and exclusive remedy between the parties regarding any claims ,
<br /> counterclaims , issues or accounting presented to the arbitrators ; that the arbitrators may , in their discretion , award reasonable attorney ' s fees and costs of
<br /> arbitration to the prevailing party in the arbitration ; that any costs , fees or taxes incident to enforcing the award shall , to the maximum extent permitted by
<br /> law , be charged against the party resisting such enforcement , and that the arbitrators shall have no right or authority to grant , and the parties hereby
<br /> waive any right to seek to receive , damages that are excluded by Section 7 or 8 or damages that exceed the limitations in Sections 7 or 8 . The award
<br /> shall be final and binding on the parties , and judgment on the award may be entered in and enforced by any court of competent jurisdiction . Upon the
<br /> request of either party , the arbitrators shall be required to deliver a written opinion addressing , at a minimum , the facts , law and reasoning which resulted
<br /> in the award .
<br /> 10 . Non -Waiver To be effective , waivers must be in writing . The waiver of any breach of this Agreement will not be deemed a waiver of any later or other
<br /> breach of this Agreement , whether or not similar or of like nature .
<br /> < . b > 11 . Compliance With Laws and Regulations . Tanknology ' s performance of the Services will comply with all applicable federal , stale and local laws ,
<br /> rules , regulations and orders .
<br /> 12 Assignment The rights and obligations of either party under this Agreement may not be assigned without the prior written consent of the other party ,
<br /> which consent shall not be unreasonably withheld ; provided , however, Tanknology may assign its rights and obligations under this Agreement without
<br /> consent from Customer if the assignment is in connection with the sale of all or substantially all of Tanknology' s assets . In the event of an assignment , the
<br /> assignor' s obligations under this Agreement shall be binding upon assignor' s successors and assigns .
<br /> 13 Severability If any provision or application of this Agreement is deemed invalid , illegal or unenforceable , the provision or application will be
<br /> reformed to the extent possible to make it valid , legal and enforceable , with such reformation to be effective as of the date of this Sales Order. If the
<br /> provision or application cannot be reformed to be legal . valid and enforceable , then the provision or application will be served from this Agreement and
<br /> the remainder of this Agreement , or the application of such provision to persons or circumstances other than those as to which it is held invalid , illegal or
<br /> unenforceable , will not be affected . Each term and prevision of this Agreement will be valid to the fullest extent permitted by applicable law .
<br /> 14 Miscellaneous This Agreement (together with the Master Services Agreement between the parties . it any ) : ( i ) is the entire agreement of the parties
<br /> and supersedes all prior and contemporaneous oral and written understandings , communications , statements , representations , agreements and
<br /> negotiations between the parties with respect to the subject matter of this Agreement ; ( ii ) insures to the benefit of and binds the parties and their heirs ,
<br /> successors , and permitted assigns , and ( iii ) may be modified only by a written instrument signed by both parties . The use of Customer preprinted forms ,
<br /> such as purchase orders or acknowledgements , in connection with this Agreement is for convenience only and all preprinted terms and conditions stated
<br /> thereon are void and of no effect . This Agreement cannot be amended , modified , or altered by any conflicting preprinted terms , provisions , conditions
<br /> contained in a Customer preprinted form , such as purchase orders or acknowledgements . Tanknology is an independent contractor and not an employee ,
<br /> partner or joint venturer of Customer. This Agreement may be executed in one or more counterparts , each of which will be an original , and all of which
<br /> together constitute one and the same instrument . Delivery by fax or email of any executed counterpart of this Agreement . or any other documents or
<br /> instruments executed in connection with this Agreement , will be equally as effective as delivery of an original executed counterpart thereof. The titles to
<br /> the sections of this Agreement have been assigned for convenience only , and shall not limit , define , or affect the substantive terms . Time is of the
<br /> essence regarding this Agreement and its notice provisions . No representations or warranties have been made by Tanknology except as expressly set forth
<br /> herein This Agreement will be construed according to its fair meaning and not for or against either party . No presumption or burden of proof will arise
<br /> favoring or disfavoring any party by virtue of the authorship , of any of the provisions of this Agreement .
<br /> 15 Applicable Law This Agreement will be interpreted , construed and governed by the internal laws of the State of Texas ( other than its laws of conflict
<br /> of laws ) .
<br /> Sales Order Revised 2 - 08 -2010 Initials :
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