Terms & Conditions

UNLESS OTHERWISE AGREED IN WRITING, ALL PROPOSALS, SALES, AND WORK PERFORMED BY PRESTON REFRIGERATION COMPANY, INC. ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:

1. GENERAL.  This document (“Seller Terms and Conditions”) shall be deemed an integral part of each proposal (“Proposal”) for the sale of goods (“Goods”) and/or the performance of services (“Services” and collectively with Goods, the “Work”) made by Preston Refrigeration Company, Inc. (“Preston”) to the customer or person buying such Goods or Services from Preston (the “Buyer”).  The acceptance of any Proposal or the issuance of any purchase order by Buyer (“Purchase Order”) is expressly limited to and conditioned upon Buyer’s acceptance of and assent to these Terms and Conditions.  Terms and conditions submitted by Buyer or found on any form issued by Buyer, including without limitation an acceptance of the Proposal or a Purchase Order form, are hereby contradicted and not recognized and shall not operate to vary any of the terms and conditions set forth herein even if such terms and conditions are not expressly contradicted again upon receipt.  Any understandings, agreements, course of dealing or performance, transactions, or usage of trade that purport to modify, vary, explain, supplement or contradict these Terms and Conditions do not come into force unless and until confirmed in writing by Preston. These Terms and Conditions along with the Proposal, and any written acceptance of such Proposal, and all documents incorporated by reference herein or therein, constitute the entire agreement (“Agreement”) between Preston and Buyer.  These Terms and Conditions are deemed to be accepted at the latest upon delivery of Goods.  Preston reserves the right in its sole discretion to refuse to accept any Purchase Order for any reason.  Preston and Buyer are sometimes referred to herein as the “Parties” or individually as a “Party”.

2. PROPOSALS.  Unless otherwise specified in writing, all Proposals made by Preston shall be effective for fourteen (14) days from the time such Proposal is sent to Buyer.  Each Proposal shall be considered an offer to provide the Goods and/or Services set forth therein upon the terms and conditions set forth therein.

3. PRICE. All prices included in any Proposal are subject to acceptance by Preston at the time acceptance of such Proposal is submitted to Preston by Buyer.  All prices are net and do not include any taxes (including but not limited to value added taxes, import fees and taxes, and any other city, county, state, or federal taxes where applicable), freight charges, insurance, storage costs, handling, demurrage, or any similar charges, costs, or fees.  Prices also do not include the cost of any licensing and permits required for the Work, which such costs shall be passed through to Buyer as a separate line item on the invoice.

4. PAYMENT TERMS. Unless otherwise agreed to in writing, 25% of the purchase price for all Work shall be due and payable at the time of Buyer’s acceptance of a Proposal or at the time of Preston’s acceptance of a Purchase Order as applicable.  The remaining 75% shall be invoiced on a monthly basis as Work progresses in accordance with the Work performed during such month.  All monthly invoices shall be paid net 30 days from the date such invoice is received by Buyer, and all invoices remaining unpaid after 60 days from Buyer’s receipt shall incur interest at the lower of (i) a per annum interest rate of 18%, or (ii) the highest rate allowed by applicable law, until payment has been made in full.

5. SHIPMENT AND RISK OF LOSS.  Unless otherwise agreed to by all Parties, all shipments shall be made Ex-Works (EXW) Preston’s location in Kansas City, Missouri according to Incoterms 2010.

6. DESIGN, SPECIFICATIONS, AND SCOPE OF WORK. All elements of design, all specifications set forth in the Proposal, and all Work (collectively the “Scope of Work”) shall be performed in accordance with:

• Drawings, 3-D modeling plans, specifications and other design documents that are mutually agreed to by the Parties in writing (collectively the “Project Documents”).  Buyer shall confirm its acceptance and approval of all Project Documents prior to the commencement of the Work.  After commencement of Work by Preston, any changes to the Project Documents required by Buyer shall require a change order and are subject to adjustments in price and schedule as set forth in Section 9 below;
• Current IIAR Standards in place as of the date of the Proposal;
• PSM-PHA requirements as outlined in the Proposal;

7. TERMINATION.

• Buyer shall have the right to terminate any Agreement, or any part thereof, at any time, subject to the terms and conditions of this Section 7, by providing written notice to Preston of such termination.  Preston has the right to terminate any Agreement upon (i) breach by the Buyer of these Terms and Conditions, (ii) failure by Buyer to make timely payments as required by the Agreement, (iii) Preston’s reasonable belief of Buyer’s inability or unwillingness to fulfill any of its obligations under the Agreement or (iv) Buyer becoming insolvent or making an assignment for the benefit of creditors, or if there shall be instituted by or against Buyer any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law.
• In the event of termination by either Buyer or Preston, Buyer will be responsible for all applicable fees, expenses, costs, and charges incurred by Preston as a result of such termination which fees, expenses, costs, and charges shall not in any case exceed the Agreement price. Upon Preston’s receipt of a notice of termination by Buyer or upon provision of a notice of termination by Preston to Buyer, Preston shall promptly stop work.  Preston shall assign to Buyer all its rights, title and interest in fabricated and un-fabricated parts, work in process, completed work, supplies and other material produced or acquired for the Work terminated.  Preston shall submit a complete inventory of Goods in process no later than thirty (30) days from the date of termination.  Buyer shall give Preston shipping or other disposition instructions for all items on the inventory list.  Simultaneously, Buyer shall pay Preston the Agreement price for all completed Work, not previously paid for, adjusted for any saving of freight and other charges.  In addition, Buyer shall pay Preston without duplication, the reasonable and necessary incurred costs of (i) partially completed Work; (ii) settling and paying suppliers and subcontractors; (iii) storage, transportation and other costs of preserving and protecting Work in process; (iv) disposition of termination inventory in accordance with Buyer’s instructions; (v) profit on partially completed Work, and (vi) a restocking fee as required by Preston.  In no event shall Buyer be liable for or obligated to pay or compensate Preston for: defective or non-conforming Work; unabsorbed overhead; anticipated profit; or consequential damages of any kind.

8. DELAYS. Preston shall not be liable for any damages, costs, or expenses associated with delays in Work or the schedule for the Work that are not caused by Preston, and Buyer agrees to pay Preston for any and all costs incurred by Preston as a result of such delays

• Delays in production schedules or changes in scheduled shutdowns not caused by Preston will be documented and billed at the appropriate straight time loss and overtime rate.
• If such a delay or schedule change results in multiple mobilizations, or if site relocations are required, the associated cost will be billed to the owner or GC.
• All such costs associated with delays in Work shall be paid to Preston within ten (10) business days of the date on which Preston sends an invoice to Buyer for the same.

9. CHANGES.

• Changes by Buyer.  Buyer shall have the right to request changes to the Scope of Work by providing notice to Preston of the same in the form of a Change Order.  Within ten (10) business days of receipt of such Change Order from Buyer, Preston shall set forth in writing any impact such change will have on the price of the Work and the time for performance of the Work.  Buyer shall have five (5) business days from the date of receipt of the same to accept in writing such changes to the price and time for performance and upon receipt of such acceptance, Preston shall proceed to incorporate such changes to the Scope of Work.  If Buyer does not accept in writing such change to the price and time for performance within such five (5) day period, such changes shall have no force or effect, and the Scope of Work shall remain unaffected.  Preston reserves the right to suspend Work until Buyer has accepted in writing any such changes to the price or time for performance, and any delays in the Work caused by such suspension shall be excused delays and shall extend the time for performance accordingly.
• Changes by Preston.  Preston shall have the right to make changes to the Scope of Work based on unanticipated or unknown events, including those arising based on reasonable assumptions made by Preston (each a “Required Change”).  In the instance that Preston discovers or encounters the need for a Required Change, Preston will notify Buyer of the same in writing within ten (10) days of discovery, and such notice will include any changes to the price or time for performance necessitated by the Required Change, if any.  If there are no changes to the price or time for performance necessitated by the Required Change, Preston shall promptly incorporate such Required Change into the Scope of Work.  If the Required Change requires a change to the price and/or time for performance, Buyer must respond in writing within five (5) days of receipt of such notice accepting such change to the price and/or time for performance as set forth in such notice.  If Buyer chooses not to accept the changes to price and time for performance as set forth in such notice, Buyer shall notify Preston of the same, and such notification shall be considered a notification to terminate for convenience in accordance with Section 7 hereof.  Preston reserves the right to suspend Work upon discovery of a Required Change until Buyer has accepted in writing any changes to the price or time for performance necessitated by the same, and any delays in the Work caused by such suspension shall be excused delays and shall extend the time for performance accordingly.

10. LIMITED WARRANTY.

• Preston warrants that all Services shall be performed in a good and workmanlike manner and all Goods and Work will be free from defects in materials, workmanship, and design for a period not to exceed 1 year from the date on which the Work is substantially complete as reasonably determined by Preston.  Additionally, Preston warrants that all Goods will be free and clear of any liens or encumbrances at the time of delivery, and Preston has good and merchantable title to and is entitled to sell such Goods to Buyer.  This warranty shall not apply to parts that are expected to need replacement within a time period shorter than 1 year, which such parts will be identified to Buyer by Preston at or before the time of Preston’s performance of the Work, and which such parts shall be purchased from Preston in order to ensure proper maintenance of such Goods.
• For any Good not manufactured by Preston or a Preston affiliate, Buyer and Preston agree that Preston is not the manufacturer of the Good to be provided under such Proposal. The Good provided for under any such Proposal will include the manufacturer’s warranty which will be passed through from Preston to Buyer. Preston agrees to pass through or assign the rights provided to Preston by such manufacturer for all Goods provided to Buyer under any such Proposal. Preston expressly does not warrant such Goods and disclaims all express and implied warranties. The manufacturer shall provide the sole warranty to Buyer in connection with the sale of such Goods. Buyer agrees that its sole remedy for defects in Goods provided in connection with any such Proposal or failure of such Goods to conform to such Proposal requirements or specifications shall be to look to the manufacturer, and Buyer will look solely to the manufacturer to recover for such defect or failure.
• All warranties provided for in this Section 8 shall be immediately void and of no further force or effect under any of the following circumstances: (i) modification, alteration, improper installation or improper repair of Work unless otherwise agreed to by Preston in writing, (ii) the use or attempted use of any spare parts or replacement parts in or on any Good unless otherwise agreed to by Preston in writing, (iii) failure of Buyer to strictly follow maintenance and operation instructions of any Work or Good as set forth in any applicable documentation provided by Preston or the manufacturer of such Good, (iv) misuse, negligence, or fault of Buyer or its agents or authorized users, (v) use of the Goods or Work in a manner for which they are not designed; or (vi) causes external to the Work or Goods such as power failure or electrical surges.  FOR THE AVOIDANCE OF DOUBT, ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION OF  THE WORK OR GOODS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN PRESTON WITHOUT PRESTON'S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY PRESTON, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO SUCH WORK OR GOODS.
• For the purposes of this section, a “Preston affiliate” shall mean, any entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, Preston. For purposes of this definition, “control” shall mean holding, directly or indirectly, either (a) 50% or more of the ordinary voting power with respect to Preston or such entity or (b) the power to direct or cause the direction of the management and policies of Preston or such entity whether by contract or otherwise.
• EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, PRESTON MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE WORK OR GOODS, THEIR MERCHANTABILITY, OR FITNESS FOR ANY INTENDED USE OR PURPOSE. PRESTON'S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY) FOR WORK OR GOODS SHALL BE LIMITED TO REPAIRING OR REPLACING WORK OR GOODS OR PARTS FOUND TO BE DEFECTIVE, OR AT PRESTON'S OPTION, TO REFUNDING THE PURCHASE PRICE OF SUCH GOODS OR PARTS. AT PRESTON'S REQUEST, BUYER WILL SEND, AT BUYER'S SOLE EXPENSE, ANY ALLEGEDLY DEFECTIVE GOODS TO THE PLANT OF THE MANUFACTURER OF SUCH GOODS IN ACCORDANCE WITH THE MANUFACTURER’S WARRANTY.
• In the instance of a warranty claim by Buyer pursuant to this Section, Buyer shall first notify Preston in writing of the issue or issues Buyer is experiencing with respect to the Work or the Goods, and shall provide sufficient details of the defect for which it is making a warranty claim.  Preston shall have a commercially reasonable amount of time to respond to such warranty claim, and upon its confirmation that the claim is a valid warranty claim, Preston shall promptly repair or replace the defective Goods, parts, or Work.  In the instance that Preston discovers that the claim is not a valid warranty claim, Buyer shall pay Preston to perform repair or replacement of the Goods or Work in accordance with its standard rates for time and materials.

11. INDEMNIFICATION.

• Preston agrees to defend, indemnify and hold Buyer, its officers, directors and employees harmless from all liability or expense for bodily injury or property damage arising from Preston’s negligence in its performance of this Agreement except to the extent such injury or property damage is caused by the negligence of Buyer.
• Buyer agrees to defend, indemnify and hold Preston, its officers, directors and employees harmless from all liability or expense for bodily injury or property damage arising from Buyer’s negligence in its performance of this Agreement except to the extent such injury or property damage is caused by the negligence of Preston.

12. FORCE MAJEURE. Preston shall not be liable for any act, omission, result or consequence, including but not limited to any delay in delivery or performance or non-performance due to acts of God; acts of Buyer; war; weather; sabotage; civil disturbances or riots; the prior performance of any government order; any order bearing priority rating or order placed under any allocation program (mandatory or voluntary) established pursuant to law; local labor shortage; fire; flood or other casualty; acts of the government (including through regulation or other requirements) or public enemy; epidemics, pandemics, or public health emergencies as declared by the World Health Organization or the Department of Health and Human Services of the United States; quarantine restrictions; shortage or failure of raw material, supply, fuel, power or transportation; breakdown of equipment; strikes, labor disputes or differences with workmen, regardless of whether or not Preston is capable of settling any such labor problem; unforeseen circumstances or any events beyond Preston’s reasonable control whether of similar or dissimilar nature than those above enumerated (each a “Force Majeure Event”). Preston has the right to cancel any Proposal or Agreement if Preston determines in its sole discretion that it will be unable to perform due to any events beyond its control, including, but not limited to those enumerated above, and Preston shall have no liability to Buyer for any costs incurred by Buyer as a result of such cancellation.

13. CONFIDENTIALITY.  In the course of the relationship between the Parties, each Party may acquire valuable trade secrets, proprietary data, and other confidential information of the other Party including without limitation, drawings, specifications, data, goods, technical information, information on processes, customer lists, customer identities, and other tangible and intangible property (collectively, the “Confidential Information”).  Each Party agrees that throughout the course of its relationship with the other Party and for a period of five (5) years after the most recent order placed by and delivered to Buyer, such Party will not, without the expressed written consent of the other Party, directly or indirectly communicate or divulge to, or use for its own benefit or the benefit of any other person or entity, any of the other Party’s Confidential Information which was communicated to or otherwise learned of or acquired by such Party during the course of its relationship with the other Party. Notwithstanding the foregoing, either Party may disclose or use Confidential Information under any of the following circumstances: (i) disclosure or use thereof in good faith and in connection with the performance of its duties in the course of its relationship with the other Party to the extent required, (ii) disclosure or use of any such information or data which is generally known within the industry or is otherwise available through independent resources, and (iii) disclosure or use thereof pursuant to any regulatory, compliance, or legal requirement in which case the disclosing Party agrees to provide notice of such requirement prior to such disclosure or use in order to give the other Party, in its discretion, the ability to challenge any such disclosure or use with the applicable governmental authority or to otherwise obtain a protective order as to such disclosure or use.  Each Party agrees to promptly notify the other Party of any disclosure of Confidential Information that is not permitted under these Terms and Conditions and of any other misuse of Confidential Information in violation of these Terms and Conditions. In addition, Buyer agrees to indemnify and hold harmless Preston and its respective officers, directors, employees, agents, successors and assigns, from and against any and all claims, actions, suits, demands, damages, liabilities, obligations, and other losses, including reasonable attorneys’ fees and court costs arising therefrom or related thereto, claimed from or against Preston and related to the unauthorized use or disclosure of Preston’s Confidential Information including but not limited to dissemination of Confidential Information that occurs due to a third-party data breach of Buyer’s computer, filing, or data retention systems.

14. PROPRIETARY RIGHTS AND INTELLECTUAL PROPERTY. Any software (including Boot ROM code, and embedded software), documentation, and data that is supplied with Goods (“Good Original Software”) as the same may be replaced or updated by Preston from time to time (“Good Software Updates”) on any media and in any form (collectively “Good Software”) is licensed and not sold to Buyer by Preston for use pursuant only to this Agreement.  Preston retains ownership of the Good Software and reserves all rights not expressly granted to Buyer.  Subject to these Terms and Conditions, Buyer is granted a limited, non-exclusive, non-transferable, non-assignable, and revocable license to use the Good Software provided with a Good purchased pursuant to this Agreement.  Buyer will not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the Good Software (collectively, "Reverse Engineering") or permit or induce the foregoing.  Any information supplied to or obtained by Buyer under this section is Confidential Information of Preston subject to the obligations of Section 11, may only be used by Buyer for the purpose described in this section, and will not be disclosed to any third party or used to create any software which is substantially similar to the Good Software.  Buyer may not rent, lease, lend, sell, redistribute, or sublicense the Good Software.  The license to use the Good Software is effective until terminated by Preston or until such time as the Buyer has disposed or transferred ownership of the Good using such Good Software.  This license does not grant Buyer any right to use any other Preston intellectual property.  Unless expressly stated in these Terms and Conditions, Preston retains all rights in its intellectual property (including copyright, trademarks, patents, design rights, know-how, processes, procedures, technical information, data, and formulae) associated with the Goods.  Buyer agrees not to infringe, directly or indirectly, any intellectual property of Preston, and agrees to not reverse engineer Goods in any way.

15. LIMITATION OF REMEDY AND LIABILITY.  PRESTON SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES SET FORTH IN THESE TERMS AND CONDITIONS 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 PRESTON’S LIABILITY TO BUYER EXTEND BEYOND OR EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC WORK OR GOODS PROVIDED BY PRESTON GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.  BUYER AGREES THAT IN NO EVENT SHALL PRESTON’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.  The term “consequential damages” shall include, but not be limited to: liquidated damages paid or payable to any third party pursuant to a contract or agreement between Buyer and such third party; loss of anticipated profits; business interruption; loss of use, revenue, reputation and data; costs incurred, including without limitation, for capital, labor, fuel, or power; and loss or damage to property or equipment. Buyer expressly acknowledges and agrees that Preston has set its prices and entered into the Agreement in reliance upon the limitations of liability and other terms and conditions specified herein, which allocates the risk between Preston and Buyer and forms a basis of this bargain between the Parties.

16. WAIVER.  Failure or inability of either Party to enforce any right hereunder shall not waive any such right with respect to future performance under the Agreement.

17. EXPORT.  Buyer agrees that all applicable export control laws, regulations, orders and requirements, including without limitation those of the jurisdiction in which Preston and Buyer are established or from which Good may be supplied, will apply to their receipt and use.  In no event shall Buyer use, transfer, release, or export Goods in violation of applicable laws, regulations, orders or requirements.  In connection with the transactions contemplated by the Agreement, Buyer is familiar with and shall fully comply with all applicable laws, regulations, rules and other requirements of Preston’s jurisdiction and of any applicable state, foreign and local governmental body in connection with the purchase, receipt, use, transfer and disposal of Goods.  If Buyer exports a Good in violation of any applicable law, regulation or rule, Buyer shall be solely responsible for any fines or penalties imposed by competent authorities and shall indemnify and hold Preston harmless from any fines, penalties, and costs (including legal fees) incurred by Preston in connection with Buyer’s violation.

18. GENERAL PROVISIONS. The Agreement supersedes all other communications, negotiations and prior oral or written statements regarding the subject matter of the Agreement.    All typographical or clerical errors made by Preston in any Proposal or publication are subject to correction.

19. APPLICABLE LAW; VENUE.  Interpretation of these Terms and Conditions and all transactions between the Parties shall be governed by and interpreted in accordance with the laws of the state of Missouri (without regard to conflict of laws provisions).  Buyer irrevocably consents and agrees that proceedings against Buyer may be brought in the courts of the State of Missouri in Jackson County, or the District Courts of the United States for the U.S. Judicial District in which said Jackson County is included.  The U.N. Convention on Contracts for the International Sales of Goods shall not apply to the Agreement.

20. NOTICE.  All notices, claims, requests and other communications hereunder which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given and received on the date sent if hand-delivered, or sent by delivery service, or facsimile transmission to the address set forth on the applicable Proposal or Purchase Order. Notices, claims, requests, and other communications delivered by mail shall be deemed to have been received three (3) business days after deposit in the US mail, postage prepaid.

21. ASSIGNMENT.  Neither the Agreement nor any of the rights, interest or obligations hereunder shall be assigned by either Party without the prior written consent of the other Party which consent shall not be unreasonably withheld provided, however, that a Party may (i) assign the Agreement to any entity that acquires all or substantially all of such Party’s assets or its business that is the subject hereof, or (ii) upon written notice to the other Party, assign the Agreement to any entity that is owned by such Party. However, nothing herein shall prohibit Preston from assigning any rights it has under any contracts with any manufacturer.

22. TOOLS AND MATERIALS. Preston shall retain title to any designs, sketches, drawings, blueprints, patterns, dies, models, molds, tools, special appliances and materials (“Articles”) furnished or paid for by Preston in connection with any Proposal or Purchase Order.  Articles shall be marked as property of Preston, shall be properly insured (with loss payable to Preston) and shall be replaced if lost or destroyed.

23. COMPLIANCE WITH LAWS.  In connection with each Proposal or Purchase Order, Buyer shall comply with all applicable foreign, federal, state, and local laws, executive orders, rules and regulations, including but not limited to the Occupational Safety and Health Act of 1970 as amended (“OSHA”), Toxic Substances Control Act as amended (“TOSCA”), Equal Employment Opportunity Act and the Regulations and Standards issued pursuant thereto, and the Fair Labor Standards Act of 1938 as amended (“FLSA”).

24. HEADINGS. The paragraph headings and numbers are for convenience only and shall not be deemed to affect in any way the language of the provisions to which they refer.

25. INTERPRETATION.  Where the context of the Agreement so requires, the singular shall include the plural and vice-versa.

26. SEVERABILITY.  Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.

27. DISPUTE RESOLUTION.  Any dispute between the parties related to this Agreement, these Terms and Conditions, any Proposal, or any Work performed by Preston hereunder shall first require the principals or authorized executives of each Party to use good faith efforts to negotiate a resolution.  In the instance that the principals or authorized executives of the Parties are unable to reach a resolution, such matter shall be submitted to binding arbitration in accordance with rules and procedures set forth by the American Arbitration Association, with such arbitration to be held in Kansas City, Missouri.  Any award or resolution rendered through such arbitration shall be final and judgment may be entered in accordance with applicable law in any court having jurisdiction thereof.

28. ORDER OR PRECEDENCE. In the event of any conflict between the Agreement and any other terms and conditions of any other document, the Agreement shall govern. In the event of conflict between the Proposal and these Terms and Conditions, the Proposal shall govern.

29. NOTICE TO OWNER.  FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC’S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT APPLICABLE LAW.  TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR “LIEN WAIVERS” FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT.  FAILURE TO SECURE LIEN WAIVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.

30. SPECIFICATIONS, EXCLUSIONS & CLARIFICATIONS. The following items are general specifications, exclusions and clarifications that are applicable to all proposals unless otherwise stated in the proposal.

General Specifications:

• All refrigeration pipe and fittings shall meet or exceed IIAR standards and ASME B31.5
• Pipe and fittings provided may be domestic or import
• All piping will be supported by roof supports constructed of galvanized tubing up-rights and galvanized angle cross members.
• Hangers and support elements for piping will be designed using industry accepted good engineering practices and meet or exceed OEM standards.
• All ammonia isolation valves are Hansen or Danfoss with no ammonia butterfly valves included.
• All piping above the roof and in the compressor room area shall be carbon steel.
• All ammonia evaporator piping below the roof shall be SS pipe and fittings.
• Preston shall utilize PVC jacketing on all insulated ammonia piping and condensate piping inside the building envelope, and embossed aluminum jacketing on all insulated pipe located outside the building envelope.
• Insulated ammonia vessels to have elliptical heads and embossed aluminum jacketing.
• All piping supports and equipment shall adhere to site specific seismic requirements.
• Heat tape and insulation will be utilized on drain lines in all rooms below freezing.
• Uninsulated drain lines will be stainless steel.

General Exclusions from price and Scope of Work:

• Permits, licensing, or performance bonds
• Professional engineer stamp or design certification
• Sales and/or excise tax
• Builder’s Risk insurance
• Roof repairs and/or wall penetrations
• Asbestos abatement or hazardous material testing or removal
• X-ray, magnetic particle, ultrasound, and dye penetration testing
• Weld and heat number mapping
• Pipe stress analysis with regards to thermal expansion, pressure/temperature rating & nozzle load calculations
• Soil testing
• Fire watch, ladder and equipment spotter and dedicated project safety personnel
• Union labor
• Glycol underfloor freeze protection system
• Post weld heat treatment for pressure vessels
• Engine room ventilation
• Condenser chemical treatment or passivation
• Refrigeration secondary containment area
• Ammonia dispersion tanks
• Ammonia evacuation
• Water make-up piping to the sump tank and purger
• Natural gas piping, regulators, and trim valves
• Any security fences or retention areas required by the owner
• Relocation or demolition of any mechanical, electrical, natural gas piping, or fire sprinkler piping
• Demolition of any existing housekeeping or concrete pads
• Sand blasting
• Fall protection in ductwork
• Snow removal

Steel & Structural Exclusions from price and Scope of Work:

• Structural engineering
• Hand railings or guard railings at roof leading edges
• Catwalk, access platforms, pipe crossovers and chain operators
• Pipe bollards
• Procurement or installation of primary or secondary structural steel

Electrical & PLC Exclusions from price and Scope of Work:

• Procurement or installation of primary or secondary structural steel
• MCC’s, motor starters, VFD’s, and PLC panels and/or controls for equipment
• Panel or starter installation of any type
• Installation of sensors, ammonia detection, lighting, break glass, PLC panels and/or controls
• Break-glass and fan control stations or emergency shut-down devices
• Audible/visual ammonia alarms

General Clarifications:

• It is implied that the Owner or General Contractor make the final determination as to the capability of the existing building structure to support all proposed piping, equipment additions and locations as described in the proposal.
• It is the customer’s responsibility to provide Preston Refrigeration with any applicable tax exemption certificates.
• Mill test heat numbers will not be traced or re-applied after painting or insulation.
• Proposal assumes drain line hub connections are within 30’-0” of equipment requiring drains.
• Preston Refrigeration shall not be held liable for errors or omissions in design by others, nor inadequacies of materials and equipment specified or supplied by others.
• Preston Refrigeration will broom clean our work area.
• All work will be performed during normal working hours.  Normal working hours are considered Monday through Saturday 7:00 am to 5:30 pm.
• All pricing assumes adequate lead time for material procurement. No provisions are included for material expediting beyond normal lead times.
• Preston Refrigeration reserves the right to use alternate manufacturers on equipment subject to availability and the Owner’s approval.
• Our proposal includes freight charges to items that pertain to our scope only.
• Owner is to provide adequate lay down or staging areas with close proximity to the scope of work being performed.
• Dumpsters and temporary toilet facilities are to be provided by the Owner.
• Electrical hook-ups for welders are to be provided by the Owner.
• Electrical hook-ups for lay down / fabrication area to be provided by Owner.
• Should owner provided drawings of existing system differ from as-built conditions, Preston Refrigeration reserves the right to charge for the additional cost associated due to discrepancies.
• Equipment manufacturer has included one mobilization for start-up and training.
• Training sessions for new equipment will be limited to two (2) sessions; one in the morning and one held in the evening.
• Customer is responsible to coordinate the work of other trades.