REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE DESIGN, OPERATION, CONDITION OR QUALITY OF THE MATERIAL OR WORKMANSHIP OF EQUIPMENT DELIVERED TO CUSTOMER HEREUNDER, AND WEATHERFORD MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, IT BEING AGREED THAT ALL SUCH RISKS AS BETWEEN WEATHERFORD AND CUSTOMER ARE TO BE BORNE BY CUSTOMER, WHETHER OR NOT SUCH EQUIPMENT IS OPERATED UNDER WEATHERFORD'S SUPERVISION AND ALL SUCH EQUIPMENT IS HEREBY ACCEPTED BY CUSTOMER "AS IS." CUSTOMERS DESIRING DIFFERENT STANDARDS SHOULD, AT CUSTOMER'S EXPENSE, OBTAIN AN INSPECTION OF THE EQUIPMENT PRIOR TO USE AND THE BENEFITS OF ANY AND ALL IMPLIED WARRANTIES OF WEATHERFORD ARE HEREBY WAIVED BY CUSTOMER. .
....
. . . . CUSTOMER'S INDEMNITY OF WEATHERFORD GROUP: CUSTOMER WILL DEFEND, INDEMNIFY, RELEASE AND HOLD WEATHERFORD GROUP HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS BY CUSTOMER OR ANY OTHER PERSON OR ENTITY AGAINST WEATHERFORD GROUP OF EVERY KIND OR CHARACTER WHATSOEVER, WHETHER SUCH CLAIMS ARE BASED ON THEORIES OF CONTRACT LAW, TORT LAW, OR OTHERWISE, DIRECT OR INDIRECT, INCLUDING SPECIAL AND CONSEQUENTIAL DAMAGES ARISING OUT OF DELIVERY, PICK-UP, REPAIR, USE OR OPERATION OF EQUIPMENT, . . . IRRESPECTIVE OF WHETHER WEATHERFORD GROUP MAY BE ALLEGED OR PROVEN TO HAVE BEEN NEGLIGENT, (INCLUDING BUT NOT LIMITED TO ACTIVE, PASSIVE, JOINT, CONCURRENT OR COMPARATIVE) OR OTHERWISE LEGALLY LIABLE (WITH OR WITHOUT FAULT OR WHETHER STRICTLY LIABLE OR IN BREACH OF ANY WARRANTY) . . . .
....
. . . . Inspection: Customer's acceptance of delivery of Equipment Indicates that Customer has inspected and found the Equipment to be suitable for its needs and in good condition. . . . Customer also has a duty to inspect the Equipment prior to use and notify Weatherford immediately of any defects.
The Stimulation Recommendation was emailed to Matador following oral discussions of
the means by which the frac job was to be conducted. The email attachment contained no terms
and conditions. At trial, Robinson clarified (1) that he did not recall noticing the tiny print
referring Matador to Weatherford's website in the Stimulation Recommendation, (2) that the
terms and conditions were not attached to the original Stimulation Recommendation, (3) and that
he had never been to Weatherford's website. London testified that the terms and conditions were never discussed and that he was not alerted to fine print by Weatherford because "we were
focusing on the technical details of all of this."
Matador argued in pretrial hearings and at trial that the terms and conditions (1) were
never adopted by the parties, (2) were not properly authenticated because Weatherford's counsel
could not say whether the terms and conditions attached to Robinson's deposition were the same
terms and conditions that existed in 2007, when the parties agreed upon the Stimulation
Recommendation, and (3) had not been conspicuously included in the Stimulation
Recommendation. Thus, Matador argues on appeal that the terms and conditions should not
have been admitted at trial, and should not have been