Pulse Parts & Service Terms and Conditions

Harper Standard Terms and Conditions – PARTS

1. Offer and Acceptance.
Purchaser offers to purchase the Products from Harper International Corporation (“Harper”), subject to the terms and conditions set forth in this Standard Terms and Conditions of Sale Agreement. Acceptance of this order will be subject to final review and approval by Harper International and confirmed via signed order acknowledgement.

2. Terms and Conditions Applicable.
When accepted by Harper, the terms and conditions set forth herein comprise all of the terms and conditions of Harper and Purchaser respecting the purchase of the Products. Any change or modification in the terms and conditions must be specifically agreed to in writing by Harper. No course of conduct and no usage of the trade shall be relevant to supplement this order. The use of a formal purchase order or other instrument by Purchaser in the course of dealing with Harper with respect to the purchase of the Products, whether submitted before or after this order, shall be considered to be for the convenience of the customer, and any printed provisions thereon shall not modify or supplement this order. Harper objects to the inclusion of any different or additional terms that may be contained in any such instrument. Purchaser’s acceptance of the Products without objection shall constitute a waiver of any such different or additional terms.

3. Price and Payment Terms.
Purchaser shall pay the purchase price quoted for the items described in the proposal. Prices are firm and are not subject to audit, price revision, or price re determination unless in a writing signed by an authorized officer of Harper. In no event shall Purchaser set off any payment due in connection with this transaction with any claim of an amount owed by Harper to Purchaser in connection with this or any other transaction. Each shipment shall be considered a separate and independent transaction and payment thereof shall be made accordingly. If Purchaser requests Harper to delay any shipment, the price for that shipment and any and all previous shipments shall be immediately due and payable. If the contract does not specify a separate price for shipment, the amount due shall be determined by Harper based upon the aggregate price and percentage of completion. Any shipment held for purchaser at Harper’s plant shall be held at the risk and expense of Purchaser.

4. Taxes.
Unless otherwise specifically provided herein, the amount of any present or future sales, revenue, excise, or other tax of any governmental body applicable to the sale of the Products shall be added to the purchase price and shall be paid by Purchaser, or in lieu thereof Purchaser shall provide Harper with a tax exemption certificate acceptable to the taxing authorities. Purchaser shall be responsible for the payment of such taxes even if all or any part thereof has not been added to the invoice price.

5. Delivery; Title; Risk of Loss.
All shipments shall be F.O.B. point of shipment, freight collect. Harper’s title passes to Purchaser, and Harper’s liability as to delivery ceases upon making delivery of the Products purchased hereunder to the carrier at Harper’s Plant, Lancaster, New York, in good condition; the carrier acting as Purchaser’s agent. All claims for damages incurred during shipment must be filed with the carrier. All shipments will normally be made by Truck Freight, Parcel Post, Air Express, or other common carrier. Unless purchaser issues specific instructions as to the carrier and/or routing to be used, Harper will exercise its own reasonable judgment. Harper shall have no liability for loss or damage to Products resulting from a delay in scheduled delivery whether caused by war, riot, strikes, labor disputes, fires, lack of transportation facilities, delays in receipt of parts or materials from suppliers or subcontractors, accidents, errors or rejection of suppliers’ or subcontractors’ parts, natural disasters, unusually severe weather, acts of God, or other circumstances beyond Harper’s control which shall prevent Harper from performing in the normal and usual course of its business. Overtime, which may be requested by Purchaser in order to maintain or improve schedules delayed by causes beyond Harper’s control, will be added to the quoted purchase price at normal rates prevailing at the time. Harper will make every reasonable effort to maintain the delivery estimates quoted, including the use of overtime and premium payments at Harper’s sole discretion.

6. Cancellations.
This order may be canceled or delayed by Purchaser only upon written consent of Harper. If Harper consents to any such cancellation or delay, Purchaser may be required to pay such amount as Harper, in its sole discretion, shall determine will fully indemnify it against any and all loss and provide Harper with a reasonable profit.

7. Installation and/or Start-Up.
Harper accepts no responsibility for installation and/or start-up of equipment unless installation and/or start-up and/or supervision of same is specifically established as part of this order. Harper shall not be liable for any labor, material, supplies, utilities, or similar items expended by Purchaser during the course of installation or start-up, unless specifically authorized by Harper in writing. Harper will make recommendations to Purchaser with regard to the installation of auxiliary equipment and similar items, but accepts no responsibility for the work and equipment provided by Purchaser or third parties or the results obtained. Should Harper’s representatives and/or personnel be required to oversee, supervise, or perform the installation and/or start-up of the equipment furnished as a part of this order, the working conditions present shall be such as to permit their work to proceed without interruption. Purchaser shall furnish and maintain heat when required in cold weather, and shall furnish and maintain potable drinking water and any necessary and reasonable safety and sanitary facilities. Purchaser shall reimburse Harper in full, and indemnify Harper, for any loss or expense to Harper or Harper’s representatives or personnel caused by work interruptions or delays or failure to maintain proper working conditions.

8. Drawings and Instructions.
Harper shall furnish Purchaser assembly drawings of the specific equipment, electrical, hydraulic, gas, and pneumatic schematic diagrams, and all other instructions and information reasonably required for the proper installation, start-up, operation, and maintenance of the equipment. All such drawings, instructions, and information are intended for use by persons having skill, at their own risk, and Harper assumes no responsibility and Purchaser hereby waives any claims based on injury or failure to follow instructions. Such drawings, instructions, or information provided by Harper are for information purposes only and will not be binding upon Harper except as noted on the face of the drawings. Harper reserves the right to make, at any time, such changes in detail of design or construction as shall, in Harper’s sole judgment, constitute an improvement. Harper reserves the right to modify/modernize the design of its products. Any such change affecting form but not function can be made without customer approval. Detail and shop drawings comprise proprietary Harper information and do not form a part of the normal drawings, instructions, and information to be supplied to Purchaser. Electronic media, including CAD programs, shall not be provided except upon Harper’s written consent.

9. Limited Warranty.
(A) Harper warrants to the original Purchaser of the Products that such Products are free from defects in design, materials, and workmanship for a period of one (1) year from the date of signing the acceptance certificate and not more than 18 months after date of shipment, whichever event comes first, from Harper’s plant in Lancaster, New York. Harper will pass on to Purchaser the same terms and warranties as granted by the manufacturers of component parts contained in Harper’s equipment. Subject to the warranty exclusions set forth below, if the Products manufactured by Harper or any part thereof are found to be defective in design, materials, or workmanship, as determined by Harper, Harper will replace or repair (at its option) said defective item or items without charge, F.O.B. its production facility in Lancaster, New York. Harper’s sole and exclusive obligation under this warranty is limited to repair or, at Harper’s option, replacement of all parts which are shown to be defective when shipped and then only if Harper is notified of such defects within such warranty period.
(B) Subject to the warranty exclusions set forth below, for any performance guarantee to be effective, Harper shall have access to the Products for the purpose of performing tests and to make such field adjustments, modifications, and changes as it may deem necessary. For such tests, Purchaser must furnish, at no cost to Harper, utilities as may be required, material of specified quality, and such labor and materials as may be required to perform the tests properly. In the event that Harper determines after such tests that the Product is not of suitable design and is incapable of operation in accordance with said performance guarantee, Harper will endeavor to make necessary modifications or replacement parts and equipment at its option.
(C) The foregoing warranty does not cover, and Harper makes no warranty with respect to:
(i) Failures not reported to Harper within the warranty period specified above.
(ii) Failures or damage due to negligence (other than that of Harper), accident, abuse, improper storage prior to installation, improper installation (other than installations made by Harper), improper operation or abnormal conditions of temperature, moisture, dirt, or corrosive matter.
(iii) Equipment which has been in any way tampered with, repaired, or altered by anyone other than an authorized representative of Harper.
(iv) Equipment damaged in shipment or otherwise without the fault of Harper.
(v) The operational or useful life of (a) heating elements, (b) refractories, (c) heat resistant alloys and (d) kiln furniture/fixtures which are all considered to be consumable components and materials.
(vi) Failures caused by Purchaser’s improper operation or use of the Product inconsistent with Harper’s instructions.
(vii) Designs and/or related equipment where new developmental designs were used by seller.
Workmanship and material defects are not excluded by this clause. THIS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS, OR OTHERWISE. Harper shall not be liable for Purchaser’s process and/or the quality of the goods or materials produced thereby in or with the aid of the Products supplied by Harper. The maximum liability of Harper for any and all claims or actions of any kind arising, directly or indirectly , out of or in connection with or resulting from the breach of this warranty, shall not exceed 20 percent of the purchase price of the Products which gives rise to such claim or action. UNDER NO CIRCUMSTANCES SHALL HARPER BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR LOSS OF BUSINESS OR PROFIT OR ANY OTHER ECONOMIC LOSS, OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES.

10. Indemnification by Purchaser.
Purchaser acknowledges that Harper has no control over, and is not responsible for, the manner in which the Products will be used or otherwise dealt with by Purchaser. Purchaser therefore agrees to assume all responsibility for any and all sums which Harper and/or Purchaser become obligated to pay because of bodily injury or property damage caused by or resulting directly or indirectly from the use of the Products. Purchaser shall indemnify and hold Harper harmless from and against any and all actions, claims, and demands, arising out of or in any way connected with the use of the Products including any actions, claims, and demands based in whole or in part on the default or negligence of Harper.

11. Patents.
Purchaser shall hold Harper safe and harmless and indemnify Harper against any expense or loss, including attorneys fees and court costs resulting from infringement of patents or trademarks arising from compliance with Purchaser’s designs or specifications or instructions. The sale of Products by Harper does not convey any license, by implication, estoppel, or otherwise, under patent claims covering combinations of the Products with other device or elements. Except as provided in the preceding paragraph, Harper shall defend any suit or proceeding brought against Purchaser based upon a claim that any Product, or any part thereof, furnished under this contract constitutes an infringement of any patent of the United States of America, if notified promptly in writing and given authority, information, and assistance (at Harper’s expense) for the defense of same, and Harper shall pay all damages and costs awarded therein against Purchaser. In case said Product, or any part, is enjoined, Harper shall, at its own expense, either procure for Purchaser the right to continue using said Product or part, or replace same with non-infringing product or part, or refund the purchase price and the transportation and installation costs thereof. The foregoing states the entire liability of Harper for patent infringement by the Products or any part thereof.

12. Confidentiality.
Any proposals, prints, drawings, instructions, or other information furnished to Purchaser by Harper are intended for the confidential use of Purchaser, shall remain the property of Harper, and shall not be used in any manner detrimental to Harper’s interests.

13. Security Interest and Default.
Until full payment of the purchase price for the Products ordered, Purchaser grants to Harper a security interest in the Products, and Harper may, at its option and without further agreement or signature by Purchaser, file evidence of such security interest pursuant to the Uniform Commercial Code. So long as Harper has such security interest, Purchaser shall keep the Products in good condition and free from any other liens or encumbrances. Harper may avail itself of all of the remedies afforded by the Uniform Commercial Code for the enforcement of the security interest herein granted to Harper.

14. Assurances of Performance.
If, in the judgment of Harper, the financial condition of Purchaser at any time does not justify continuation of production or shipment on the terms of payment originally specified, Harper may require full or partial payment in advance and, in the event of the bankruptcy or insolvency of Purchaser or in the event any proceeding is brought by or against Purchaser under the bankruptcy or insolvency laws, Harper may be entitled to cancel any order then outstanding, without liability whatsoever, and shall receive reimbursement for its cancellation charges.

15. Collection.
In the event of default by Purchaser in payment of any monies due to Harper, Purchaser shall pay interest at the maximum legal rate on all such sums from the date due until paid. Should Harper be required to commence an action to enforce the terms of this contract, Harper shall be entitled to receive its reasonable attorneys’ fees and all of Harper’s costs and expenses, including court costs in connection with such action.

16. General.
Harper represents that with respect to the production of the Products, equipment, and/or the performance of the services covered by this purchase order or contract, it will fully comply with all requirements of the Fair Labor Standards Act of 1938, as amended. If a government contract number is shown in the proposal, quote or contract, clauses contained in the contract and the FAR which the government makes mandatory for a contractor under a government contract to include in it subcontracts thereunder, will apply to this order.

17. Choice of Law, Personal Jurisdiction and Venue (Forum).
This Sale agreement shall be deemed to have been made in the state of New York and, accordingly, shall be governed by, construed, interpreted, and the rights of the parties determined in accordance with the laws of the State of New York, without regard to its principles for resolving conflicts of law. The parties agree that any lawsuit arising out of or relating to this Sale Agreement must be brought in, and litigated before, a court located in Erie County, New York, to the exclusion of the courts of any other country, state, city or county. In accordance herewith, the parties consent to the jurisdiction of the federal, state and local courts located in Erie County, New York with respect to a lawsuit arising out of or relating to this Sale Agreement.

18. Force Majeure.
Neither party shall be held responsible for failure or delay to perform all or any part of the contract due to flood, fire, earthquake, snowstorm, drought, hailstorm, hurricane, war, epidemic or pandemic (which shall not include COVID-19), government prohibition, lack or delay in granting of government export license, or any other events that are unforeseeable at the time of the execution of the contract.

The parties acknowledge and agree that Harper’s delivery obligations may be impacted by disruptions resulting from COVID-19 and that, notwithstanding anything herein to the contrary, Harper shall not have any liability for any delay in performance as a result of any such supply chain, freight or shipping disruptions. Harper shall use commercially reasonable efforts to mitigate the impact of such disruptions on Harper’s performance.

Harper Standard Terms and Conditions – Service

1. Offer and Acceptance.
Purchaser offers to purchase the Services from Harper International Corporation (“Harper”), subject to the terms and conditions set forth in this Standard Terms and Conditions of Sale Agreement. Acceptance of this order shall be subject to final review and approval by Harper International and confirmed via signed order acknowledgement.

5. Cancellations.
This order may be canceled or delayed by Purchaser only upon written consent of Harper. If Harper consents to any such cancellation or delay, Purchaser may be required to pay such amount as Harper, in its sole discretion, shall determine will fully indemnify it against any and all loss and provide Harper with a reasonable profit.

6. Service.
Harper shall not be liable for any labor, material, supplies, utilities, or similar items expended by Purchaser during the course of service, unless specifically authorized by Harper in writing. Harper shall make recommendations to Purchaser with regard to the service of auxiliary equipment and similar items, but accepts no responsibility for the work and equipment provided by Purchaser or third parties or the results obtained. Should Harper’s representatives and/or personnel be required to oversee, supervise, or perform service on the equipment furnished as a part of this order, the working conditions present shall be such as to permit their work to proceed without interruption. Purchaser shall reimburse Harper in full, and indemnify Harper, for any loss or expense to Harper or Harper’s representatives or personnel caused by work interruptions or delays or failure to maintain proper working conditions. Harper may appoint third parties to perform service under this Service Agreement. All references herein to Harper shall be deemed to include such service providers.

7. Non-Solicitation.
During the period commencing on the date of this Agreement and continuing until the expiration of 60 months after the project or relationship contemplated hereby is completed or abandoned, neither Client nor its affiliates shall, directly or indirectly, solicit, hire, attempt to solicit or hire, or participate in any attempt to solicit or hire, any person who is an employee of Harper and who is directly or indirectly involved in Harper’s provision of goods or services to, or other relationship with, Client.

8. Technical Documentation.
Harper shall furnish Purchaser assembly drawings of the specific equipment, electrical, hydraulic, gas, and pneumatic schematic diagrams, and all other instructions and information reasonably required for the proper service and maintenance of the equipment. All such drawings, instructions, and information are intended for use by persons having skill, at their own risk, and Harper assumes no responsibility and Purchaser hereby waives any claims based on injury or failure to follow instructions. Such drawings, instructions, or information provided by Harper are for information purposes only and shall not be binding upon Harper except as noted on the face of the drawings. Harper reserves the right to make, at any time, such changes in detail of design or construction as shall, in Harper’s sole judgment, constitute an improvement. Harper reserves the right to modify/modernize the design of its products. Any such change affecting form but not function can be made without customer approval. Detail and shop drawings comprise proprietary Harper information and do not form a part of the normal drawings, instructions, and information to be supplied to Purchaser. Electronic media, including CAD programs, shall not be provided except upon Harper’s written consent.

9. Limitations of Liability.
Harper shall not be liable for Purchaser’s process and/or the quality of the goods or materials produced thereby in or with the aid of the Products supplied by Harper. The maximum liability of Harper for any and all claims or actions of any kind arising, directly or indirectly , out of or in connection with or resulting from the breach of this warranty, shall not exceed 20 percent of the purchase price of the Services which gives rise to such claim or action. UNDER NO CIRCUMSTANCES SHALL HARPER BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR LOSS OF BUSINESS OR PROFIT OR ANY OTHER ECONOMIC LOSS, OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES.

10. Indemnification by Purchaser.
Purchaser acknowledges that Harper has no control over, and is not responsible for, the manner in which the Products shall be used or otherwise dealt with by Purchaser. Purchaser therefore agrees to assume all responsibility for any and all sums which Harper and/or Purchaser become obligated to pay because of bodily injury or property damage caused by or resulting directly or indirectly from the use of the Products. Purchaser shall indemnify and hold Harper harmless from and against any and all actions, claims, and demands, arising out of or in any way connected with the use of the Products including any actions, claims, and demands based in whole or in part on the default or negligence of Harper.

11. Confidentiality.
Any proposals, prints, drawings, instructions, or other information furnished to Purchaser by Harper are intended for the confidential use of Purchaser, shall remain the property of Harper, and shall not be used in any manner detrimental to Harper’s interests.

12. Security Interest and Default.
Until full payment of the purchase price for the Products ordered, Purchaser grants to Harper a security interest in the Products, and Harper may, at its option and without further agreement or signature by Purchaser, file evidence of such security interest pursuant to the Uniform Commercial Code. So long as Harper has such security interest, Purchaser shall keep the Products in good condition and free from any other liens or encumbrances. Harper may avail itself of all of the remedies afforded by the Uniform Commercial Code for the enforcement of the security interest herein granted to Harper.

13. Assurances of Performance.
If, in the judgment of Harper, the financial condition of Purchaser at any time does not justify continuation of service on the terms of payment originally specified, Harper may require full or partial payment in advance and, in the event of the bankruptcy or insolvency of Purchaser or in the event any proceeding is brought by or against Purchaser under the bankruptcy or insolvency laws, Harper may be entitled to cancel any order then outstanding, without liability whatsoever, and shall receive reimbursement for its cancellation charges.

14. Collection.
In the event of default by Purchaser in payment of any monies due to Harper, Purchaser shall pay interest at the maximum legal rate on all such sums from the date due until paid. Should Harper be required to commence an action to enforce the terms of this contract, Harper shall be entitled to receive its reasonable attorneys’ fees and all of Harper’s costs and expenses, including court costs in connection with such action.

15. General.
Harper represents that with respect to the production of the Products, equipment, and/or the performance of the services covered by this purchase order or contract, it shall fully comply with all requirements of the Fair Labor Standards Act of 1938, as amended. If a government contract number is shown in the proposal, quote or contract, clauses contained in the contract and the FAR which the government makes mandatory for a contractor under a government contract to include in it subcontracts thereunder, shall apply to this order.

16. Choice of Law, Personal Jurisdiction and Venue (Forum).
This Sale agreement shall be deemed to have been made in the state of New York and, accordingly, shall be governed by, construed, interpreted, and the rights of the parties determined in accordance with the laws of the State of New York, without regard to its principles for resolving conflicts of law. The parties agree that any lawsuit arising out of or relating to this Sale Agreement must be brought in, and litigated before, a court located in Erie County, New York, to the exclusion of the courts of any other country, state, city or county. In accordance herewith, the parties consent to the jurisdiction of the federal, state and local courts located in Erie County, New York with respect to a lawsuit arising out of or relating to this Sale Agreement.

17. Force Majeure.
Neither party shall be held responsible for failure or delay to perform all or any part of the contract due to flood, fire, earthquake, snowstorm, drought, hailstorm, hurricane, war, epidemic or pandemic (which shall not include COVID-19), government prohibition, lack or delay in granting of government export license, or any other events that are unforeseeable at the time of the execution of the contract.

Pulse Parts & Service Terms and Conditions

Harper Standard Terms and Conditions – PARTS

Harper Standard Terms and Conditions – Service

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