These terms and conditions (these "Terms") are the only terms that govern the provision of roll grinding/repair services, and/or the sale of related products, by Precision Roll Grinders, Inc., a Pennsylvania corporation with an office at 6356 Chapmans Road, Allentown, PA 18106 ("PRG") to the customer named on the accompanying Statement of Work (defined below) ("Customer"). The accompanying PRG Statement of Work quote, Statement of Work or other similar documentation of PRG (the "Statement of Work"), and these Terms (collectively with the Statement of Work, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Statement of Work, these Terms shall govern, unless the Statement of Work is signed by PRG and expressly states that the terms and conditions of the Statement of Work shall control. These Terms prevail over any of Customer's general terms and conditions regardless of whether, or when, Customer has submitted its request for proposal, order, or such terms (no such terms are binding on PRG unless specifically accepted in writing). Providing any Deliverables to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.
PRG shall provide the roll grinding/repair services to Customer as described in the Statement of Work (the "Services") in accordance with these Terms. Any of Customer’s “rolls”, or other equipment, which are the subject of any of PRG’s Services hereunder shall be referred to as a “Serviced Item”. Any industrial rolls, or components parts thereto, that are sold by PRG to Customer hereunder shall be referred to as “Products”. Products and Serviced Items are collectively referred to herein as “Deliverables”.
- Performance Dates.
PRG shall use reasonable efforts to meet any performance on completion dates specified in the Statement of Work, and any such dates shall be estimates only. PRG will not be liable for any damages for failure to complete the Deliverables within a stipulated or requested time.
- Customer's Obligations.
(a) cooperate with PRG in all matters relating to the Deliverables and provide such access to Customer's premises, and such office accommodation and other facilities as may reasonably be requested by PRG, for the purposes of providing the Deliverables;
(b) respond promptly to any request to provide direction, information, materials approvals, authorizations or decisions that are reasonably necessary for PRG to provide the Deliverables in accordance with the requirements of this Agreement, and ensure that such customer materials or information are complete and accurate in all material respects; and
(c) obtain and maintain all necessary licenses and consents and comply with all applicable laws.
- Customer's Acts or Omissions.
If PRG's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, PRG shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly, or indirectly, from such prevention or delay.
- Change Orders.
(a) If either party wishes to change the scope or performance of the Deliverables, it shall submit details of the requested change to the other party in writing. PRG shall, within a reasonable time after such request, provide a written estimate to Customer of:
(i) the likely time required to implement the change;
(ii) any necessary variations to the fees and other charges for the Deliverables arising from the change;
(iii) the likely effect of the change on the Deliverables; and
(iv) any other impact the change might have on the performance of this Agreement.
(b) Promptly after receipt of the written estimate, the parties shall, in good-faith, negotiate and agree in writing on the terms of such change (a "Change Order"). Neither party shall be bound by any Change Order unless mutually agreed upon in writing (which may occur via email from the appropriate authorized representatives of each party).
(c) Notwithstanding Section 6(a) and Section 6(b), PRG may, from time-to-time change the Deliverables without the consent of Customer provided that such changes do not materially affect the nature or scope of the Deliverables, or the fees or any performance dates set forth in the Statement of Work.
- Fees and Expenses; Payment Terms; Interest on Late Payments.
(a) In consideration of the provision of the Deliverables by PRG and the rights granted to Customer under this Agreement, Customer shall pay the fees and charges set forth in the Statement of Work (and, as applicable, any Change Order). Unless otherwise agreed to between the parties in a Statement of Work, Customer shall pay all invoiced amounts due to PRG within thirty (30) days from the date of PRG's invoice. Customer shall make all payments hereunder in U.S. dollars by wire transfer to PRG’s designated account.
(b) Any charges for the use of special dyes, jigs, fixtures, tools, etc., represent only a part of the cost and, therefore, do not:
(i) convey to Customer any ownership (or future use) rights or any rights to remove such items from PRG’s premises; or (ii) include an obligation of PRG to maintain such items. For the avoidance of doubt, such special dyes, jigs, fixtures, tools, etc. at all times remain the property of PRG.
(c) In the event payments are not received by PRG within thirty (30) days after becoming due, PRG may, at its option:
(i) charge interest on any such unpaid amounts at a rate of two percent (2%) per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and/or
(ii) suspend performance for all Deliverables until payment has been made in full.
- Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.
(a) Customer is responsible to ensure that all materials delivered to PRG are properly stored, packaged, secured and labeled in compliance with all applicable transportation regulations, import/export rules, environmental regulations and other applicable laws. During the storage and/or transportation of Customer's materials, if applicable, any of Customer's containers that were used for the delivery of such items to PRG shall continue to be used, but any damage to such containers shall be at the Customer's risk (unless such damage directly results from the gross negligence of PRG). Should Customer desire that any other packaging or containers be utilized, PRG will charge Customer for its material and handling costs.
(b) Unless otherwise agreed to in any particular Statement of Work, the shipping terms for all Deliverables shall be “FCA” PRG’s Allentown, Pennsylvania facility [INCOTERMS 2020]. All shipping costs, charges, duties and taxes shall be paid for by Customer. Notwithstanding anything to the contrary provided herein, PRG shall not be responsible for, and the Customer shall release, indemnify and hold PRG harmless from any damages to the Deliverables (and/or other costs or losses) that occur during the shipment of such Deliverables to, or from, PRG’s facility(except in the case where PRG has made shipping arrangements pursuant to the applicable Statement of Work and has selected the specific carrier).
- Intellectual Property.
No Intellectual Property rights of PRG are implied or granted to Customer. Customer shall acquire no right, title or interest in any tangible or intangible property, patent, copyright, trademark or other Intellectual Property of PRG. As used herein, “Intellectual Property” shall mean any patent, copyright, registered design, unregistered design right, trademark, trade secret or other industrial or intellectual property owned or used by PRG, together with any current or future applications for any registerable items of the foregoing.
- Confidential Information.
All non-public, confidential or proprietary information of PRG, including, but not limited to, Intellectual Property information, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by PRG to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Deliverables and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of PRG. Confidential Information does not include information that is:
(a) in the public domain;
(b) known to Customer at the time of disclosure; or
(c) rightfully obtained by Customer on a non-confidential basis from a third party. Customer agrees to use the Confidential Information only to make use of the Deliverables. PRG shall be entitled to injunctive relief for any violation of this Section.
- Limited Warranty.
(a) Subject to the terms and conditions of this Agreement (and the applicable Statement of Work), PRG warrants that, from the date that any Deliverables are made available to the carrier for shipment to Customer’s designated location until a date that is ten (10) days after the carrier has delivered such items to Customer (the “Warranty Period”), that such Deliverables shall: (i) materially conform to the specifications set forth on the applicable Statement of Work; and (ii) be free from material defects in materials and workmanship.
(b) PRG shall not be liable for a breach of the warranty set forth in this Section 12 unless:
(i) Customer gives written notice (defined below) of the defect, reasonably described, to PRG within ten (10) days of the date that the Deliverables have been delivered to Customer’s designated location; (ii) PRG is given a reasonable opportunity after receiving the notice to examine such Deliverables (if requested to do so by PRG, Customer shall return such Deliverables to PRG’s place of business (at Customer’s cost) for examination); and (iii) PRG reasonably verifies Customer’s claim that the Deliverables are defective due solely to PRG’s actions or omissions.
(c) PRG shall not be liable for a breach of the warranty set forth in this Section 12 if:
(i) Customer makes any further use of such Deliverables after giving such notice; (ii) the defect arises because Customer failed to follow PRG’s written instructions as to the storage, installation, use or maintenance of the Deliverables; (iii) Customer (or a third party) alters, or repairs, such Deliverables without the prior written consent of PRG; (iv) such defect or damage results from Customer’s (or a third party’s) negligence or misuse; (v) such defect or damage results from ordinary wear and tear; or (vi) such defect or damage results from improper, inaccurate or incomplete specifications or other information provided by (or on behalf of) Customer to PRG.
(d) Subject to the Agreement and this Section 12, with respect to any such defective Deliverables during the Warranty Period , PRG shall, in its sole discretion, either provide an account credit or repair such Deliverables (or the defective part), provided that, if PRG so requests, Customer shall return such Deliverables to PRG (at Customer’s cost). Any damage that occurs to a Deliverable while it is being returned, is the responsibility of Customer, who is responsible for insuring such shipment. Returns will not be accepted without the prior written authorization of PRG.
(e) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS Section 12, PRG MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE Services AND/or any DELIVERABLES, INCLUDING ANY:
(i) WARRANTY OF MERCHANTABILITY;
(ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE;
(iii) WARRANTY OF TITLE; OR
(iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(f) THE REMEDIES SET FORTH IN SECTION 12(d) SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND PRG'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 12.
- Limitation of Liability.
IN NO EVENT SHALL PRG BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT PRG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. In addition and notwithstanding anything to the contrary provided herein, IN NO EVENT SHALL PRG'S AGGREGATE LIABILITY ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, WHETHER ARISING OUT OF, OR RELATED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO PRG PURSUANT TO THE APPLICABLE STATEMENT OF WORK IN THE Six (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(a) In addition to any remedies that may be provided under this Agreement, PRG may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
(i) fails to pay any amount when due under this Agreement and such failure continues for thirty (30) days after Customer's receipt of written notice of nonpayment;
(ii) has not otherwise performed, or complied with, any of the terms of this Agreement, in whole or in part; or
(iii) becomes insolvent, files a petition for bankruptcy or commences, or has commenced against it, proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. In addition, PRG may terminate this Agreement “without cause” by providing Customer thirty (30) days prior written notice thereof.
(b) The rights and obligations of the Parties set forth in Sections 7 through 27, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement, and with respect to Confidential Information that constitutes a trade secret under applicable law, the rights and obligations set forth in Section 11 hereof will survive such termination or expiration of this Agreement until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Customer.
Customer shall indemnify, defend, and hold harmless PRG and its officers, directors, affiliates, employees, agents, affiliates, successors, and permitted assigns (each, an "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, arising out of or resulting from Customer's (or its affiliates’ and its or their employees’, officers’, directors’, shareholders’, partners’, members’, managers’, agents’, independent contractors’, service providers’, sublicensees’, subcontractors’ or other agents’):
(a) negligence or willful misconduct; or
(b) breach of this Agreement. Customer shall not enter into any settlement without PRG's or Indemnified Party's prior written consent.
During the term of this Agreement and for a period of three (3) years thereafter, Customer shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers, in full force and effect that is sufficient to insure against Customer’s liabilities and obligations hereunder. Upon PRG's request, Customer shall provide PRG with proof of such insurance (reasonably acceptable to PRG). The evidence of insurance shall name PRG as an additional insured. Customer shall provide PRG with thirty (30) days' advance written notice in the event of a cancellation or material change in Customer's insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against PRG's insurers and PRG.
- Legal Compliance.
(a) Customer shall comply with all applicable laws, statutes and administrative regulations of all relevant jurisdictions in the performance of its duties and obligations under this Agreement. Customer shall bear all costs, fees and expenses associated with complying with applicable laws.
(b) Each Party represents to the other Party that, to the best of its knowledge, no Benefited Party (defined below) is in violation of the Executive Order (defined below), the Patriot Act, the Anti-Money Laundering Act, or any order, rule, regulation or recommendation promulgated under or in connection with the Executive Order, the Patriot Act or the Anti-Money Laundering Act. “Benefited Party” means and includes each Party and:
(i) their respective officers, directors, shareholders, partners or members;
(ii) any direct or indirect holder of any equity interest in such Party; and
(iii) any affiliate of such Party. “Executive Order” means Executive Order 13224 signed on September 24, 2001 and titled “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism” (as may have been amended or modified to date). “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (as may have been amended or modified to date). “Anti-Money Laundering Act” means the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 (as may have been amended or modified to date).
(c) Customer will not export or re-export, directly or indirectly, any Deliverables or other related products or technical data (as defined by the U.S. Export Administration regulations, or their successors) under this Agreement to a destination to which such export or re-export is restricted or prohibited by U.S. or non-U.S. law without obtaining prior authorization from the U.S. Department of Commerce and/or other competent government agencies to the extent required by law; or export or re-export, directly or indirectly, any component or product of such technical data, Deliverable or products, including software, to a destination to which such export or re-export is restricted or prohibited by U.S. or non-U.S. law without obtaining prior authorization from the U.S. Department of Commerce and/or other competent government agencies to the extent required by law. Further, if applicable, upon PRG’s request, Customer agrees to provide PRG with “End User Certificates” in a form required by PRG or applicable law for all Deliverables provided hereunder.
(d) Customer shall adhere to the highest standards of business ethics. In particular, without limiting the generality of the aforesaid, Customer agrees to employ adequate anti-corruption policies and practices. Further, Customer is aware of, and agrees to fully comply with, and to cause its agents and employees to comply with, the U.S. Foreign Corrupt Practices Act and other laws dealing with bribery of government officials.
No waiver by PRG of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by PRG. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Force Majeure.
PRG shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by, or results from, acts or circumstances beyond the reasonable control of PRG including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of ninety (90) days, Customer shall be entitled to give notice in writing to PRG to terminate this Agreement.
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of PRG. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement. Customer agrees that PRG may utilize the services of third-party vendors and/or contractors to assist with the provision of the Deliverables covered by this Agreement, to the extent reasonably necessary.
- Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to, or shall confer upon, any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- Governing Law.
This Agreement and all related documents, including all exhibits attached hereto, and all matters arising out of, or relating to, this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, United States of America (including its statutes of limitations, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania) (and excluding the U.N. Convention on Contracts for the International Sales of Goods). This Agreement shall be written in the English language with no enforceable counterparts in any other language.
- Submission to Jurisdiction.
Each Party, irrevocably and unconditionally, agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from, or relating to, this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the U.S. District Court for the Eastern District of Pennsylvania, United States of America, or the courts of the Commonwealth of Pennsylvania sitting in Lehigh County, and any appellate court from any thereof. Each Party, irrevocably and unconditionally, submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the U.S. District Court for the Eastern District of Pennsylvania and the courts of the Commonwealth of Pennsylvania sitting in Lehigh County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Statement of Work or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile/email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only:
(a) upon receipt of the receiving party; and
(b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Amendment and Modification.
This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.