Terms and Conditions of Sale of ORR Protection Systems, Inc.

(rev 03/23/2022) 

1. General. The following Terms and Conditions of Sale (“Terms and Conditions”) shall govern all sales of goods or services (“Goods” or “Services”) provided by ORR Protection Systems, Inc. (“ORR”) to any buyer or end-user with whom ORR undertakes to deal (the “Customer”). These Terms and Conditions apply to the exclusion of all inconsistent, modifying or varying terms or conditions offered or relied on by the Customer. All sales by ORR are expressly limited to and made conditional upon Customer’s assent to the Terms and Conditions which may only be modified by written agreement duly signed by an authorized executive of ORR. No other representative, distributor, dealer or employee of ORR has the authority to bind ORR.
2. Price. Unless otherwise agreed to in writing by ORR, the Price excludes all sales, use and other governmental charges and taxes relating to the production, shipment or purchase of Goods or Services hereunder, and shall be payable by Customer directly to the appropriate governmental agency. All Services shall be performed during regular business hours. In the event Customer requests performance at any other time, an additional amount shall be billed and paid by Customer, over and above the agreed upon contract Price, as compensation for overtime wages and for other expenses occasioned thereby.
3. Payment. Payment shall be due and payable thirty (30) days from invoice date. Past due accounts are subject to a late fee of one and one-half percent (1½%) per month or the highest rate permitted by law. Acceptance of payment on any past due amounts shall not be deemed a waiver of any rights ORR may have against Customer for late payment. ORR may demand assurance of Customer’s ability to pay whenever it reasonably appears that such ability is in doubt.
4. Delivery/Transfer of Risk/Title. Unless otherwise agreed to in writing by ORR:
   1. Goods to be installed by ORR shall be delivered CIP Customer’s nominated domestic location, freight prepaid and added at actual cost (Incoterms 2010).
   2. Goods that are not to be installed by ORR shall be delivered CIP ORR’s shipping location (Incoterms 2010).
   3. Title shall pass upon transfer of risk of loss.
5. Warranty.
   1. The Goods provided are manufactured by other parties and are warranted by those manufacturers against defects in materials and workmanship for a period of time depending on the Goods. To the extent allowed by contract, law or otherwise, ORR will pass through to Customer any and all warranties that are in effect for Goods purchased. Customer’s sole remedy for defective Goods shall be those afforded through the manufacturer’s warranty. ORR will administer the manufacturer’s warranty.
   2. Services will be performed with reasonable care and skill ordinarily exercised by others in similar professions, under similar circumstances. If Customer notifies ORR within 90 days of the date of performance of defects in Services, then ORR, at its sole election, will either re-perform the Services or return the Price paid for them. In the event ORR’s investigation or inspection reveals no defect, ORR’s regular charges for any and all repairs shall apply. This warranty does not cover defects arising from Customer’s misuse, abuse, neglect or improper handling.
   3. ORR MAKES NO OTHER WARRANTY, EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY OR THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, UNLESS OTHERWISE SET FORTH IN WRITING AND SIGNED BY AN AUTHORIZED OFFICER OF ORR. ANY OTHER WARRANTIES OF ANY NATURE INCONSISTENT WITH THOSE SPECIFIED HEREUNDER, WHETHER MADE BY A SALESPERSONS, REPRESENTATIVE, DISTRIBUTOR, DEALER AND/OR EMPLOYEE OF ORR SHALL NOT CONSTITUTE A WARRANTY, SHALL NOT BE RELIED UPON BY CUSTOMER AND ARE NOT A PART OF THESE TERMS AND CONDITIONS.
6. Delays. Customer shall provide ORR access to the worksite premises, facilities and equipment necessary for ORR to timely perform the work. ORR shall be free to start and stop all primary equipment incidental to ORR’s performance of the work, as arranged with Customer’s representative. If Customer (including Customer’s subcontractors or Customer) delays or interrupts progress of the work, all additional on-site time, travel time and materials shall be at Customer’s expense. ORR shall bear no liability for any delays or failure to perform caused by any third party.
7. Safety. The Customer shall ensure the work environment is safe and free from hazards.
8. Changes. On Customer’s request for a change in scope, ORR will submit a proposal specifying any changes, including the Price and schedule, and shall proceed with the changes upon written agreement by Customer.
9. Breach. In the event of Customer’s breach or default hereunder, including without limitation Customer’s wrongful rejection or refusal to accept delivery or repudiation of its contract to purchase Goods, or Customer’s failure to make payment due hereunder, ORR shall be entitled to exercise any and all remedies provided by law and under the Uniform Commercial Code, and to recover the Price of any such Goods or, if action for the Price is not permitted by law, to recover consequential and incidental damages, including, without limitation, lost profits. All rights and remedies of ORR shall be cumulative and may be exercised from time to time, either consecutively or concurrently. ORR and Customer agree that any Goods not normally carried in ORR’s inventory or that cannot be readily resold at a reasonable price, purchased by ORR in complete or partial fulfillment of Customer’s order, shall be deemed identified to the contract between ORR and Customer. ORR shall be entitled, to the extent allowed by law, to reasonable attorneys’ fees, allowable court costs, and other costs incurred in connection with enforcement of any terms and conditions hereunder.
10. Indemnification. Customer agrees to defend, indemnify and hold ORR and its parents, officers and affiliates harmless from and against any damage, deficiency, loss, cost, action, claim, judgment or expense, including without limitation, reasonable attorneys’ fees, arising from any breach of these Terms and Conditions or in connection with any bodily injury, including death, at any time resulting therefrom, or in connection with any damages to or loss of property sustained by any person, whether direct, indirect or consequential, arising from or related to any Goods or Services provided by ORR, except for claims or damages resulting solely from ORR’s gross negligence.
11. Liability. ORR shall not be liable for any loss or damage suffered by Customer in excess of the Price paid by Customer. Nothing contained in these Terms and Conditions shall be construed so as to limit or exclude the liability of ORR for death or personal injury as a result of ORR’s negligence or that of its employees or agents.   IN NO EVENT WILL ORR BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF ORR’S SUPPLY OF GOODS OR SERVICES, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Confidentiality.
    1. The term “Confidential Information” means nonpublic, proprietary, and confidential information (whether in writing, or in oral, graphic, electronic, or any other form) of ORR, its parent, subsidiaries, and affiliates, and includes, but is not limited to, ORR’s financial records, customer lists, customer identities, customer requests, prices, and contracts as they exist from time to time, and the methods, inventions, process formulae, compositions, inventions, product specifications, prospective products including, without limitation, possible names, trademarks, trade dress, graphics, product markets or market segments, machines, manuals and blueprints, abstracts, prospectus documents, designs, schematic drawings, programs, software, code, research projects, analyses, and information received from others that ORR is obligated to treat as confidential, including the existence and nature of ORR’s relationships with others and the contents of any proposal submitted by ORR.
    2. Customer recognizes and acknowledges that ORR’s Confidential Information is a valuable, special and unique asset of ORR. Customer agrees to safeguard the Confidential Information of ORR. Customer will not, while working with ORR or thereafter, disclose any such Confidential Information to any third person, company, association or entity, without the express written authorization of ORR. The Customer does not have and shall not be deemed to have any right, title, or interest in the Confidential Information, whether under trade secrecy, copyright, patent, or related laws. Upon the termination of this Agreement, Customer shall immediately return to ORR all Confidential Information then in Customer’s possession, including all photocopies or other duplications or compilations thereof, whether prepared by Customer or others, or certify in writing that said Confidential Information has been destroyed. Customer further recognizes and agrees that an integral part of his/her full and best efforts is his/her duty to honor any confidentiality agreement which ORR’s customers may require.
13. Relationship of the Parties. Nothing contained herein shall be construed as establishing or implying any partnership or joint venture between the parties and nothing herein shall be deemed to construe either of the parties as an agent of the other.
14. Force Majeure. ORR shall bear no liability whatsoever to Customer for any failure to perform or delay caused by fire, earthquake, explosion, flood, hurricane, tornado, the elements, acts of God or the actions of a public enemy, restrictions, limitations or interference of governmental authorities or agents, war, invasion, insurrection, rebellion, riots, strikes or lockouts, inability to obtain necessary materials, goods, services, utilities or labor, or any other cause, whether similar or dissimilar to the foregoing, which is beyond the reasonable control of ORR, and any such failure or delay due to such cause shall not be deemed a breach of or default in the performance be ORR.
15. Governing Law, Jurisdiction. The laws of the Commonwealth of Kentucky shall apply to this contract and its construction. All disputes arising hereunder shall be submitted to the exclusive jurisdiction of the applicable courts of the Commonwealth of Kentucky.
16. Severability. To the extent any provision or clause herein is prohibited by any law or is deemed unenforceable, such prohibition or unenforceability shall not invalidate any of the remaining provisions or clauses hereof.
17. Waiver. No waiver of any breach of any provision of hereof shall constitute a waiver of any other breach of the same or any other provision.
18. Oral Statements. If any salespersons, representatives, distributors, dealers and/or employee of ORR may have made oral or written statements about the Goods or Services described herein, such statements do not constitute warranties, shall not be relied upon by Customer and are not a part hereof.