“Customer” means the entity that purchases a service and/or System from Atlas.
“Atlas” means Atlas High Purity Solutions, a division of Quench USA, Inc.
“System” means any equipment delivered and installed by Atlas.
“Terms and Conditions” means the terms and conditions of supply set forth in this document and any special terms and conditions agreed to in writing by Atlas.
- Invoicing and Payment
Invoices are due and payable within thirty (30) days of billing date. Overdue accounts may be assessed a monthly interest charge of 1.5%, or the maximum amount allowed by law, whichever is least. Returned checks will be assessed a $25 fee. Should Atlas be required to enroll in a fee-based service to maintain its vendor status with Customer, Customer agrees to reimburse Atlas for any such fees, which will be included with the next invoice.
- Term and Termination
The relevant term for services to be performed by Atlas shall be set forth in the applicable Maintenance Agreement, Rental Agreement, Equipment Contract/PO or Service Order. Either party may terminate services to be performed hereunder in the event that the other party is in material breach of its obligations and fails to cure such breach within thirty (30) days following receipt of written notice from the non-breaching party, or as otherwise agreed in writing by both parties.
All notices hereunder shall be in writing, directed to Customer or Atlas at their respective addresses set forth on the applicable Maintenance Agreement, Rental Agreement, Equipment Contract/PO or Service Order, and shall be deemed properly given when delivered in person, deposited in U.S. Mail, Certified, Return Receipt Requested, Postage Prepaid, or electronically with proof of receipt.
- Limited Warranty
ALL MATERIALS, PARTS AND EQUIPMENT ARE WARRANTED BY THE MANUFACTURER’S OR SUPPLIER’S WRITTEN WARRANTY ONLY. ALL LABOR PERFORMED BY ATLAS IS WARRANTED FOR THE FIRST TWELVE (12) MONTHS FOLLOWING PURCHASE AND INSTALLATION OR A SYSTEM, AND THROUGHOUT THE TERM OF ANY MAINTENANCE AGREEMENT WITH ATLAS, OR AS OTHERWISE AGREED IN WRITING BY ATLAS. ATLAS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATION OR WARRANTY FROM COURSE OF DEALING OR USAGE OF TRADE, AND ITS AGENTS AND TECHNICIANS ARE NOT AUTHORIZED TO MAKE ANY SUCH WARRANTIES ON BEHALF OF ATLAS.
- Limitation of Liability
A. Customer will obtain and maintain its own insurance, covering personal injury and property loss or damage to, or resulting from, the System, and understands that engaging Atlas to design, install and/or maintain the System is not a replacement for Customer’s insurance. Customer further understands and agrees that: (a) Atlas does not operate, possess or control the use of the System; (b) the System may be extensively damaged by improper use, neglect, abnormal operating conditions, alteration, loss of water, or unauthorized adjustments or repairs; and (c) Atlas’ services provided to Customer are not intended to, and are not capable of, preventing damage to the System as a result of improper use, neglect, abnormal operating conditions, alteration, loss of water, or unauthorized adjustments or repairs. Customer agrees to defend, indemnify, and hold harmless Atlas from and against any and all claims, losses, liabilities, damages, and expenses relating to the System, System installation, or the failure of any connection to or from the System, except to the extent arising from the gross negligence or intentional misconduct of Atlas.
B. Customer understands and agrees that if Atlas should be found liable for loss or damage because of the failure of the System to perform properly solely as a result of the gross negligence or willful misconduct of Atlas in connection with its performance of the design, installation, and/or maintenance services subscribed for by Customer, or any services provided in connection with such services, Atlas’ liability shall not exceed, in the aggregate, a sum equal to the contract value of the applicable contract under which the work was performed by Atlas, and that this liability shall be exclusive. The provisions of this Section shall apply to any claim, loss or other liability arising out of, or connected with, the agreement between Customer and Atlas, and whether based upon contract, warranty, strict liability, tort (including, without limitation, negligence), or otherwise. Notwithstanding any provision hereof to the contrary, in no event shall Atlas be liable for special, exemplary, indirect, incidental, or consequential damages (including, without limitation, loss of revenues, profits, savings or business), whether or not the possibility of such damages has been disclosed to Atlas in advance or could have been reasonably foreseen by Atlas.
- Force Majeure
Except for the payment of fees due and owing, neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside of such party’s reasonable control, including but not limited to acts of God, strikes, lock-outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials, and the party shall be entitled to a reasonable extension of its obligations.
Customer’s rights and obligations hereunder shall not be assignable by Customer without the prior written consent of Atlas, which consent shall not be unreasonably withheld. Any attempted assignment in contravention hereof shall be null and void. Atlas may, without any requirement for prior consent by Customer, assign its rights hereunder to any party or entity who succeeds (by purchase, merger, operation of law or otherwise) to all or substantially all of the assets or business of Atlas, if the succeeding party or entity agrees in writing to assume and be bound by all of the obligations of Atlas hereunder. These Terms and Conditions shall be binding upon and enforceable by, and shall inure to the benefit of, the parties and their respective successors and permitted assigns.
- Entire Agreement
These Terms and Conditions, together with all applicable Maintenance Agreements, Rental Agreements, Equipment Contracts/POs, Service Orders and related documents executed by the parties constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter hereof. No modification, amendment or waiver of any provision of these Terms and Conditions shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer documentation shall be incorporated into or form any part of these Terms and Conditions or the agreement between the parties, and all such terms or conditions shall be null and void. If any provision of these Terms and Conditions is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable or severed from these Terms and Conditions if reformation is not feasible, and the remaining provisions will continue in full force and effect.
- Governing Law and Venue
These Terms and Conditions shall be construed under and in accordance with the laws of the State of New York (exclusive of any provision that would result in the application of the laws of any other state or jurisdiction). Atlas and Customer consent to the exercise of personal jurisdiction over them by the state courts of the State of New York or the United States District Court for the Southern District of New York for the purposes of enforcement of these Terms and Conditions. If Atlas brings an action to enforce any provision of these Terms and Conditions, including, but not limited to in connection with Customer’s default, Customer agrees to pay reasonable attorneys’ fees and all costs associated with such action.