Terms & Conditions - Upstate Refractory Services

Upstate Refractory Services, Inc., is herein referred to as the “Seller” and the customer or person or entity purchasing products or services from Seller is referred to as the “Buyer”. These Terms and Conditions, any price list or schedule, quotation, acknowledgement, Seller’s scope of work or invoice from Seller relevant to the procurement of products or services and all documents incorporated by specific reference herein or therein, constitute the complete and exclusive statement of the terms of this agreement (“Agreement”) governing the sale of products or services by Seller to Buyer. Any discrepancies between the terms of the above referenced documents shall be resolved by the Seller. Seller’s acceptance of Buyer’s purchase order is expressly conditional on Buyer’s assent to all of the terms of this Agreement, including terms and conditions that are different from or additional to the terms and conditions of Buyer’s purchase order. Buyer’s acceptance of the products and services will manifest Buyer’s assent to the terms of this Agreement. Seller reserves the right in its sole discretion to refuse orders.

Prices: Unless otherwise specified in writing by Seller, the price quoted or specified by Seller for products and services shall remain in effect for thirty (30) days after the date of Seller’s quotation. Seller’s scope of work or acknowledgement of Buyer’s order for products or services, whichever comes first, provided an unconditional authorization from Buyer for delivery of goods or services per an acceptable time frame as agreed to by the Seller. If authorization is not received by Seller within a thirty (30) day period, Seller shall have the right to change the price for products or services. All prices are exclusive of taxes, which are to be borne by the Buyer. Unless otherwise specified by Seller, products or services will be furnished at Seller’s then prevailing prices.
Taxes: Any current or future tax or governmental charge (or increase in same) affecting Seller’s costs of services or costs of production, sale, delivery or shipment or which Seller is otherwise required to pay or collect in connection with the provision of services or products, shall be for Buyer’s account and shall be added to the price or billed to Buyer separately, at Seller’s election.
Terms of Payment: Unless otherwise specified by Seller, terms of payment are net 30 days from the date of seller’s invoice. Seller shall have the right, among other remedies, either to terminate this Agreement or to suspend further performance under this Agreement and/or other agreements with Buyer in the event Buyer fails to make any payment when due, which other agreements Buyer and Seller hereby amend accordingly. Buyer shall be liable for all expenses, including attorney’s fees, relating to the collection of past due amounts. If any payment owed to Seller is not paid when due, it shall bear interest at a rate determined by the Seller, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Seller may preserve its interest in payment by enforcing any applicable mechanic’s, construction or similar lien rights. Should Buyer’s financial responsibility become unsatisfactory to the Seller, cash payments or security satisfactory to the Seller may be required by Seller for future performance of services or product delivery. If such cash payment or security is not provided, in addition to Seller’s other rights and remedies, Seller may discontinue performance of services or provision of parts.
Shipment and Delivery: While Seller will use all reasonable commercial efforts to maintain the performance dates acknowledged or quoted by Seller, all performance dates are approximate and not guaranteed. Seller, at its option, shall not be bound to tender delivery for which Buyer has not provided shipping instructions and other required information. If the provision of services to be performed or parts to be delivered are postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. Unless otherwise specified by Seller, for sales of products in which the end destination of the parts is outside of the United States, risk of loss and legal title to the parts shall transfer to Buyer immediately after the parts have passed beyond the territorial limits of the United States. For all other shipments, risk of loss and legal title shall pass from Seller to Buyer upon delivery to and receipt by carrier at Seller’s shipping point. Notwithstanding the above, risk of loss and legal title of parts shall transfer to Buyer (i) when delivered by the individual providing the service or (ii) at the time parts are placed in storage due to Buyer’s delay or postponement. Any claims for shortages or damages suffered in transit are the responsibility of the Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be identified and signed for at the time of delivery.
Limited Warranty: Subject to the limitations of Section 6, Seller warrants that it will perform the services as described in this Agreement and will exercise all reasonable skill, care and due diligence in the performance of services and shall perform the services in accordance with professional practice. Seller warrants that all services performed shall be free from faulty workmanship for a period of one year from the completion of services. If the Buyer has tampered with or made any adjustments to work performed by the Seller within the one-year time period, the limited warranty is then null and void. To the extent assignable, Seller assigns to Buyer any warranties that are made by manufacturers and suppliers of parts. Except as specified above, parts furnished hereunder are furnished as-is, where-is with No warranty whatsoever. The warranties set for the in this Section 5 are the sole and exclusive warranties given by Seller with respect to the services and products and are in lieu of and exclude all other warranties, express or implied, arising by operation of law or otherwise, including without limitation, merchantability and fitness for a particular purpose whether or not the purpose or use has been disclosed to seller in specifications, drawings or otherwise. This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, negligence (other than Seller’s), unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault of the Seller. To the extent that the Buyer or its agents have supplied specifications, information, representation of operation conditions or other data to Seller that is used in (I) the selection of the services or products and (ii) the preparation of Seller’s quotation and/or scope of work, and in the event that actual operating conditions or other conditions differ from those represented by Buyer, any warranties or other provisions contained herein that are affected by such conditions shall be null and void. Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of products or services, either alone or in combination with other parts.
Limitation of Remedy and Liability: The sole and exclusive remedy for breach of any warranty hereunder shall be limited to, at seller’s sole option, either correct performance for that portion of the services found by Seller to be defective or refund of the price paid for that portion of the services. Seller shall not be liable for damages caused by delay in performance and the remedies of Buyer set forth in this agreement are exclusive. In no event, regardless of the form of the claim or cause of action (whether based in contract, infringement, negligence, strict liability, other tort or otherwise), shall Seller’s liability to Buyer and/or its customers exceed the price paid by Buyer for the specific product or service provided by Seller giving rise to the claim or cause of action. Buyer agrees that Seller’s liability to Buyer and/or its customers shall not extend to include incidental, consequential or punitive damages. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use, revenue, reputation and data, costs incurred, including without limitation, for capital, fuel, power and loss or damage to property and equipment. It is expressly understood that any technical advice furnished by Seller with respect to the use of the product and/or service is given without charge and Seller assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer’s risk.
Insurance; Seller shall maintain the following insurance or self-insurance coverage: Worker’s Compensation in accordance with the statutory requirements of the state in which the work is performed. Employer’s Liability with a limit of liability of $2,000,000 per occurrence for bodily injury by accident or bodily injury by disease. Commercial General Liability (CGL) for bodily injury and property damage with a limit of $2,000,000 per occurrence and aggregate. CGL includes Contractual Liability. CGL does not include products and completed operations coverage, which is self-insured. Automobile liability insurance that covers usage of all owned, non-owned and leased vehicles and which is subject to a combined single limit per occurrence of $2,000,000. Automobile liability insurance includes Contractual Liability, but no special endorsements. Additional information related to the insurance coverage provided by Seller can be supplied by contacting the Seller in writing with the specific request. Buyer expressly acknowledges and agrees that Seller has set its prices and entered into this Agreement in reliance upon the limitations of liability, insurance coverage and other terms and conditions specified herein, which allocate the risk between Seller and Buyer and forma a basis of this bargain between the parties.
Excuse of Performance: Seller shall not be liable for delays in performance or for non-performance due to acts of God; war; epidemic; fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; default of suppliers or unforeseen circumstances; acts or omissions of Buyer, including without limitation, those specified in Section 19; or any events or causes beyond Seller’s reasonable control. Performance of services and delivery of parts may be suspended for an appropriate period of time or cancelled by Seller up notice to Buyer in the event of any of the foregoing, but the balance of this Agreement shall otherwise remain unaffected as a result of the foregoing. If Seller determines that its ability to supply the total demand for the services or parts or to obtain material used directly in the manufacture of the parts is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, Seller may delay performance of services or allocate its available supply of product among its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance with may result therefrom.
Cancellation: Buyer may cancel orders only upon reasonable advance written notice and upon payment to Seller for Seller’s cancellation charges with include, among other things, all costs and expenses incurred and to cover commitments made by the Seller, and a reasonable profit thereon. Seller’s determination of such cancellation charges shall be conclusive. Down payments, progress payments or advanced payments made by the Buyer will be used to offset any and all costs incurred by the Seller.
Changes; Buyer may request changes or additions to products or services. In the event such changes or additions are accepted by Seller, Seller may revise the price and performance dates. Seller reserves the right to change designs and specifications for the products and services without prior notice to Buyer, except with respect to products being made-to-order for Buyer. Seller shall have no obligation to install or make such changes in any products manufactured or services rendered prior to the date of such change.
Assignment: buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any such assignment or delegation, without such consent, shall be void.
Inspection: buyer shall have ten (10) days from the date of completion of each portion of the service provided to inspect the service, and in the event of non-conformity, Buyer mist give written notice to Seller within said period stating why the Services are not conforming. Failure by Buyer to give such notice constitutes unqualified acceptance of the Service.
Billable Services: Additional charges will be billed to Buyer at Seller’s then prevailing labor rates for any or all of the following: a) any Services not specified in Seller’s quotation, Seller’s order acknowledgement, Seller’s scope of work or other documents referenced herein and therein; b) any services performed at times other than Seller’s normal service hours; c) if timely and reasonable site and/or equipment access is denied the Seller service representative; d) if it is necessary, due to local circumstances, to use union labor or hire an outside contractor, Seller service personnel will provide supervision only and the cost of such union or contract labor will be charged to the Buyer; e) if service or repair is necessary to return equipment to proper operating condition as a result of other than Seller; (i) maintenance, repair, modification (including, without limitation, changes in specifications or incorporation of attachments or other features); (ii) misuse or neglect, (including, without limitation, failure to maintain facilities and equipment in a reasonable manner); (iii) failure to operate equipment in accordance with applicable specifications, and (iv) catastrophe, accident or other causes external to equipment; f) Seller’s performance is made more burdensome or costly as a result of Buyer’s failure to comply with its obligations herein, or g) any additional obligations or requirements, including but not limited to those related to insurance requirements, serviced delivery, building entry or technical training.
Drawings; Seller’s documents, prints and drawings (Documents) (including without limitation, to underlying technology) furnished by Seller to Buyer in connection with this Agreement are the property of the Seller and Seller retains all rights, including without limitation, exclusive rights of use, licensing and sale. Notwithstanding the foregoing, Buyer may use the Documents in connection with the service and products.
Export/Import: Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States, and the jurisdictions in which the Seller and Buyer are established or from which services and products may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, import or export products in violation of such applicable laws, regulations, orders or requirements.
Non-Solicitation: Buyer shall not solicit, directly or indirectly, or employ any employee of Seller during the period any services are being provided to Buyer and for a period of one (1) year after the last provision of services.
General Provisions: These terms and conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of the terms and conditions. No change, modification, rescission, discharge, abandonment or waiver of these terms and conditions shall be binding upon the Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller. No conditions, use of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement this Agreement shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms shall be applicable to this Agreement by Seller’s receipt, acknowledgement, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material alteration hereof. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s accent to any additional or different terms set forth herein. Seller reserves the right to subcontract services to others. No waiver by either party with respect to any breach of default or any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or any other right or remedy, unless such waiver is expressed in writing and signed by the party to be bound. All typographical or clerical errors made by the Seller in any quotation, acknowledgement or publication are subject to correction. The validity, performance, and all other matters relating to the interpretation and effect of this Agreement shall be governed by the law of the state of New York without regard to conflict of laws principles. Buyer and Seller agree that the proper venue for all actions arising in connection herewith shall be only in the counties of Wayne or Monroe, state of New York and the parties agree to submit to such jurisdictions. No action, regardless of form, arising out of transactions relating to this contract, may be brought by either party more than two (2) years after the cause of action has accrued. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to this Agreement.
Additional Service Conditions: The Buyer shall furnish to Seller, at no cost, suitable working space, storage space, adequate heat, telephone, light, ventilation, required electric power and outlets for testing purposes, waste disposal, access to water, if required to perform the Service or clean the area. The facilities shall be within a reasonable distance from where the Services are to be provided. Seller and its representatives shall have full and free access to the equipment in order to provide the necessary Services. Buyer authorizes Seller to send a service technician or an authorized agent to access any site requested by Buyer to perform Services, including services on different scopes of work and equipment as requested by Buyer. Buyer shall provide the means to shut-off and secure electric, gas or other power sources to the equipment and provide safe working conditions. Seller is under no obligation to remove or dispose of parts or equipment unless specifically agreed up in Seller’s scope of work. Buyer shall immediately inform Seller, in writing, at the time of order placement and thereafter, of any unsafe or hazardous substance or condition at the site, including but not limited to, the presence of asbestos or asbestos-containing materials, and shall provide Seller with any applicable Safety Data Sheets regarding the same. Any losses, costs, damages, claims and expenses incurred by Seller as a result of Buyer’s failure to so advise Seller shall be borne by Buyer. Seller, in its sole discretion and without cost or penalty, reserves the right to cancel its performance under this Agreement or any order immediately upon written notice to Buyer following Seller discovery of unsafe or hazardous site substance or condition or any other circumstances altering Seller performance of Services. Buyer shall appoint a representative familiar with the site and the nature of the Services to be performed by Seller to be accessible at all times that Seller personnel are at the site. Seller shall not be liable for any expenses incurred by Buyer in removing, replacing or refurbishing any Buyer equipment or any part of Buyer’s building structure that restricts Seller access. Buyer personnel shall cooperate with and provide all necessary assistance to Seller. Seller shall not be liable or responsible for any work performed by Buyer.
Indemnity: Each party shall indemnify and hold the other party harmless from loss, damage, liability or expense resulting from damage to personal property of a third party, or injuries, including death, to third parties to the extend caused by a negligent act or omission of the party providing indemnification or a party’s subcontractors, agents or employees during performance of services hereunder. Such indemnification shall be reduced to the extent damage or injuries are attributable to others. The indemnifying party shall defend the other party in accordance with and to the extent of the above indemnification, provided that the indemnifying party is : i) promptly notified by the other party, in writing, of any claims, demands or suits for such damages or injuries, ii) given all reasonable information and assistance by the other party, iii) given full control over any resulting negotiations, arbitration or litigation, including the right to choose counsel and settle claims, or the indemnifying party’s obligations herein shall be deemed waived.