Proposal Terms and Conditions
Updated: September 2022.
- Exclusive Terms and Conditions – These Terms and Conditions, together with any proposals of the Environmental Group, a Division of Barclay Water Management, Inc. (BWM) are the exclusive contract terms between Buyer and BWM (Agreement) with respect to all reports, plans, chemicals, cleaning services, software and services, advice and instructions to be provided by BWM. Any alteration of or addition to this Agreement, whether oral or written, and whether contained in a purchase order or otherwise, or whether by course of performance or usage of trade shall be void and of no force and effect unless specifically agreed to in writing and signed by an authorized representative. There are no additional or collateral agreements, representations, or warranties between the parties relating to the transaction contemplated hereby. Acceptance of the Goods and Services shall constitute acceptance of these Terms and Conditions by Buyer. In the case of any conflict between these Terms and Conditions and any written proposal of BWM the terms of the proposal shall prevail.
- Prices – Unless otherwise agreed, prices are subject to change upon 30 days advance notice. All sales, other than those that BWM quotes on a delivered basis, are F.O.B. point of shipment. Sudden and/or extraordinary increases in the cost of raw materials, labor and delivery charges may make this agreement subject to an interim price adjustment agreed upon by both parties upon 30 days written notice.
- Payment – Terms of payment are net 30 days within receipt of an invoice for all Goods and Services invoiced upon delivery.
- Taxes – All sales, use, property or gross receipts taxes imposed on the sale, shipment or use of the Goods and Services (other than income and taxes) shall be the obligation of and be paid by Buyer.
- Buyer Obligations – BWM shall be relieved of its obligations with respect to its warranties, performance goals, cost saving or usage goals or any other commitments, in addition to any other remedies it may have, in the event of Buyer’s failure: (a) to operate the systems and all related equipment and processes within control parameters or, if none, within industry customary operating conditions; (b) to maintain the Systems in good operating order and repair; (c) to follow BWM’s recommendations or to fulfill its responsibilities for System operation; (d) to communicate to BWM hidden or not obvious system, process, or equipment conditions affecting BWM’s Goods or (e) to provide complete and accurate System data.
- Use of Equipment – Title to, and ownership of, any and all equipment utilized under this agreement shall remain the property of BWM unless expressly detailed otherwise in writing. Equipment owned by BWM shall be used only for the approved use by BWM.
- Termination – This agreement and any order or delivery or any Services may be terminated or suspended: (a) by either party if any proceeding under bankruptcy or insolvency laws is brought by or against the party; (b) by a party if the other party defaults in its material obligations and such default is not cured within 60 days of receipt of written notice specifying in detail the default and allowing a meaningful opportunity to correct; (c) by BWM if it has reason to doubt the ability or willingness of Buyer to pay; (d) by BWM if Buyer fails to follow recommendations of BWM or fails to exercise good stewardship; (e) by BWM if the sale or use of any of the Goods might violate any intellectual property rights; or (f) by either party upon 30 day written notice.
- Notices – Notices shall be in writing and sent to the parties at the addresses first stated in Agreement or to any other address specified by a party from time to time by written notice and shall be effective upon receipt.
- Warranties – BWM warrants to Buyer, that services provided by BWM shall conform to BWM’s published specifications and shall be free from defect in material and workmanship and that the Services will be consistent with BWM’s standards. A claim for breach of the foregoing warranties must be received by BWM within 12 months of the date of service or the claim shall not be valid. BWM’s liability and Buyer’s exclusive remedy for any breach of these warranties is limited to replacement of non-conforming Goods or services with payment in an amount not to exceed the purchase price of the non-conforming items. If any Service fails to meet the foregoing warranty, BWM shall re-perform the Service or refund an amount not to exceed the amount paid for the Service, or, if the Services were provided free of charge, pay an amount not to exceed amounts paid for the Goods to which the defective Services relate in the 12 months prior to the event of the liability.
- Compliance with Laws – Buyer shall be responsible for complying with all laws related to the installation, registration, labeling and operation of all Goods after delivery to it, and Buyer hereby indemnifies BWM from and against all Costs BWM may suffer as a result of Buyer’s breach or default of this covenant.
- Force Majeure – BWM shall not be liable for any failure or delay in performance due, in whole or in part, to fire, explosion, natural disaster, labor disputes, raw material shortages, act of governmental authorities, or to any cause of any nature beyond BWM’s control.
- Insurance – In the event BWM fails to comply with any of Buyer’s insurance requirements, whether imposed by contract or otherwise, Buyer’s sole remedy shall be termination of purchases from BWM.
- Indemnifications: You agree to indemnify, defend and hold BWM, its officers, directors, employees, agents, representatives, licensors, advertisers, suppliers, and service providers harmless form and against any and all claims, actions, losses, expenses, damages and costs (including reasonable attorney’s fees), resulting from any breach or violation of this Agreement by you.
- Non Discrimination: This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.
- Building Water Management Program (WMP) (If applicable) – This is the official Terms of Use Agreement (“Agreement”) for the Legionella Water Management Program (the “Program”). These terms and conditions regarding your use of the Program constitute a legally binding agreement between you and Barclay Water Management Inc. Under this Agreement, the term “Program” includes all content of any nature within the Program. By accepting the Program, you understand, acknowledge and agree that you will abide by the terms of this Agreement. This Agreement will remain in full force and effect as long as you are user of the Program.
- WMP Liability regarding information provided by the buyer (If applicable) – If applicable, while BWM makes every effort to ensure that the information provided on WMP reports and related technical services is accurate and up to date, BWM is not responsible for any errors, omissions, misleading statements, the use of any information, product, method or equipment herein presented, or provided to buyer, and buyer must make its own determination as to its accuracy and suitability for its own use, for the protection of the environment and for health and safety purposes. In no event shall BWM, be liable for damages of any nature whatsoever resulting from the use of or reliance upon inaccurate information provided by the buyer.
- Use of WMP (If applicable): BWM hereby grants a nonexclusive, nontransferable right to you as the facility owner to use this Plan for the water management of one building or multiple buildings, located on one campus. The Program may be used only by the facility owner’s employees and may not be donated, sold, distributed, or commercially exploited in any form. You must not alter, delete or conceal any copyright or other notices contained in the Program, including notices on any materials you download, transmit, display, print or reproduce from the Program. You shall not, nor will you allow any third party (whether or not for your benefit) to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party, or otherwise use, any materials without the express prior written consent of BWM. We require users to respect our copyrights, trademarks, and other intellectual property rights. We likewise respect the intellectual property of others.
- WMP Hyperlinks To Third party Plans (If applicable): The appearance, availability, or use of URLs or hyperlinks referenced or included anywhere in the Program does not constitute an endorsement by, nor does it incur any obligation, responsibility or liability on the part of BWM, any of its successors and assigns, and any of their respective officers, directors, employees, agents, representatives, licensors, advertisers, suppliers, and operations service providers. We do not verify, endorse, or have any responsibility for any such third party websites, their business practices (including their privacy policies), or any goods or services associated with or obtained in connection with any such website, whether or not BWM’s logo or sponsorship identification is on the third party website as part of a co-branding or promotional arrangement. If any third party website obtains or collects personal information from you, in no event shall we assume or have any responsibility or liability.
- WMP Risk Assessment (If applicable): Is intended to be a working document for your reference and to facilitate implementation of program recommendations designed to minimize public health-related risks associated with the various water systems. Accordingly, this document has been assembled in a manner that allows for presentation of the requisite materials in a user-friendly format. Data and information for this report was obtained through physical inspection of the site water systems and direct conversations with engineering department personnel. It is very important that the reader reviews and understands that recommendations are designed to minimize public health-related risks associated with the assessed water systems at your facility. It is not realistic or possible for any program to establish the goal of eliminating all public health-related risks. The goal of the WMP is to reduce to the greatest extent possible the health-related risks associated with the building water systems. All recommendations are based on current published guidelines and literature. However, local regulations always supersede any recommendations contained herein.
- Cooling Tower, Ice Machine, Domestic Water Tanks and Coil Cleaning Services (If applicable): Barclay Water Management, Inc.’s cleaning services are designed to minimize health-related risks associated with the growth of Legionella within domestic and industrial water systems. If the recommended practices are followed as outlined, the health-related risks from other waterborne pathogens will likewise be reduced. While recommendations from Barclay Water Management, Inc.’s Water Hygiene Services are designed to reduce health-related risks to ensure the overall health and safety of your employees and associates, no program can eliminate health-related risks together. In addition, recommended practices presented herein do not guarantee that water quality within the assessed systems will meet governmental or trade standards. Local regulations will override specific recommendations where relevant.
- Cooling Tower, Domestic Water Tanks and Coil Cleaning Requirements (If applicable): Provide BWM with sufficient water to perform any pressure washing services and access to areas covered by the contact and estimate/proposal. If you have any questions about the work you have contracted BWM to perform or changes to be made, please call BEFORE the start of your project.
- Limitation on Liability (If applicable) – IN NO EVENT WILL BWM BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM THE GOODS OR SERVICES, IRRESPECTIVE OR WHETHER THE CLAIM RISES FROM ACTUAL OR ALLEGED BREACH OF WARRANTY, INDEMNIFICATION, BREACH OF CONTRACT, PRODUCT LIABILITY, CONTRIBUTION OR ANY LEGAL THEORY AND IN NO EVENT WILL BWM BE LIABLE FOR LOST PROFITS, COSTS OR LOSSES NOT ASSOCIATED WITH DIRECT PHYSICAL DAMAGE TO PROPERTY.
- Regulatory Requirements (If applicable) – It is the customer’s responsibility to comply with all local regulatory requirements. During the course of the contract, regulations could change beyond Barclay’s control. This may require added costs to the program per new permit requirements. This could be in the form of extra water sampling, additional services, additional paperwork, or additional oversight. Barclay will monitor the requirements and bring to the customer any relevant changes that will affect the current program in place and pricing.
