Last Updated: August 29, 2023
1. PROPOSAL; EXCLUSIVE TERMS AND CONDITIONS – Only a proposal that has been reduced to writing by Barclay Water Management, Inc. (“BWM”) shall be considered a proposal (“Proposal”). A Proposal shall not become binding upon BWM until it has been executed and returned to BWM by Purchaser. These Terms and Conditions of Sale (these “Terms and Conditions”), together with any Proposal are the exclusive terms between you, the purchaser, (“Purchaser”) and BWM (the “Agreement”) with respect to all chemicals, equipment, tanks, software (“Products”) and services, advice and instructions (“Services”) to be delivered or provided by BWM. Any alteration of or addition to the 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 of BWM. If Purchaser’s purchase order or documents contains additional or different terms and conditions, then Purchaser’s terms and conditions are rejected since BWM’s Proposals are expressly limited to acceptance of the terms of the Agreement. Acceptance of the Products and Services shall constitute acceptance of the Agreement by Purchaser. In the case of any conflict between these Terms and Conditions and any Proposal of BWM, the terms of BWM’s Proposal shall prevail.
2. CREDIT – Credit terms of payment must have the approval of BWM’s Credit Department. If Purchaser’s credit is found by BWM to be unsatisfactory, BWM may rescind or terminate the Agreement. If at any time Purchaser’s financial responsibility becomes impaired or unsatisfactory to BWM, BWM reserves the right to stop shipment on notification to Purchaser, with a demand for payment in advance or at time of delivery for future deliveries or to require other security satisfactory to BWM and in the absence thereof, to cancel the unfilled portion of the Agreement. BWM will notify Purchaser promptly of its decision to stop shipments and give an advance notice to the extent possible.
3. PAYMENT – Standard terms of payment shall be net thirty (30) days of the date of invoice. Purchaser agrees to make payment to BWM’s location specified on the Proposal in United States currency. Purchaser further agrees to make all payments when due to BWM in accordance with the agreed upon amounts set forth in the Proposal.
4. INTEREST; COSTS – Purchaser agrees to pay interest at the rate of 1-1/2% per month (to the extent permitted by law) on all delinquent balances if and when assessed by BWM. Purchaser further agrees to pay any and all attorneys’ fees, expenses and/or court costs arising out of and made necessary to collect all amounts due to BWM pursuant to the terms of the Agreement.
5. TAXES – Any federal, state or local tax assessment, fee, duty or charge hereafter due in connection with Purchaser’s purchase and/or receipt of the Products and Services hereunder shall be paid by Purchaser unless Purchaser furnishes BWM with an acceptable exemption certificate from each such tax, fee, duty or charge prior to shipment.
6. SAFETY DATA SHEET – BWM will provide Purchaser with a safety data sheet with information concerning the material and precautions to be taken in the material’s storage and handling. Purchaser shall be responsible for knowing all such information and precautions disclosed in the safety data sheet and for conveying such information to persons who may be exposed to the material.
7. FORCE MAJEURE – BWM shall not be liable for defaults hereunder caused by floods, fires, storms, pandemics, or other acts of God, by war or act of public enemy (or civil disturbance), strikes, lockouts, shortages of labor or raw materials and supplies (including fuel) or production facilities, transportation service or equipment shortages or failures, actions of any governmental authority or other conditions beyond BWM’s reasonable control. BWM shall have the right to apportion deliveries of Products on an equitable basis as determined by BWM.
8. MODIFICATION – If Purchaser desires to cancel a part of the Agreement or modify the Agreement, Purchaser must make such request in writing to BWM. BWM may, in its sole discretion, accept or reject any such request. Notwithstanding BWM’s agreement to cancel or modify any terms of the Agreement, Purchaser must take delivery and make payment to BWM for all: (a) material that has been manufactured or is in the process of being manufactured at the time of notice, and (b) all special materials ordered at the time of notice. Payment will be due at the time that BWM receives notice of the cancellation or modification request. All such materials must be removed from BWM’s premises within thirty (30) days after payment. BWM also reserves the right to charge a cancellation fee in the event of cancellation by the Purchaser of an order that has already been placed in BWM’s shipping schedule and acknowledged by BWM.
9. PRICES – Prices are subject to change without notice. Orders based on published prices and accepted for scheduled shipment will be invoiced at BWM’s applicable price in effect on the scheduled date of shipment, unless otherwise specifically noted on the order acknowledgement. Orders specifying palletizing or special packaging will involve special charges.
10. DELAYS – All orders are accepted subject to BWM’s ability to make delivery at the time and in the quantities specified, and BWM shall not be liable for damages, for failure to make partial or complete shipment or for any delay in making shipments. Purchaser shall be liable for any added expenses incurred by BWM because of Purchaser’s delay in furnishing requested information to BWM, delay resulting from order changes by Purchaser, or delays in unloading shipments at the delivery point.
11. SHIPMENT – BWM will select the method of shipment and routing when transportation charges are for account of BWM. When shipping instructions are specified by Purchaser, all costs will be for the account of Purchaser. The foregoing includes, but is not limited to, carrier’s charges for notification prior to delivery, demurrage, delay in unloading, diversion or re-consignment.
12. TITLE – Title to Products (other than software and leased equipment, pumps and tanks) transfers to Purchaser FOB shipping point. Upon delivery, Purchaser is responsible for the proper placement of Products and compliance with all regulations and ordinances. Title of software, leased equipment and tanks shall remain with BWM. Purchaser will indemnify, defend, and hold BWM harmless against all claims, damages and expenses (including attorneys’ fees) for personal injuries or property damage arising from the receipt, storage, use or handling of such Products.
13. TRANSIT CLAIMS – Claims for damage or shortage in transit must be made against the carrier by the owner of the shipment according to the FOB terms of the Agreement. Purchaser has the responsibility to inspect shipments upon receipt of Products to identify any such damage or shortage and to make sure that the appropriate notation is made on the delivery tickets or inspection report furnished by the local agent of the carrier in order to support a claim.
14. LIMITATION OF LIABILITY – BWM MAKES NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OF NON-INFRINGEMENT. EXCEPT FOR THE LIMITED EXPRESSED WARRANTIES PROVIDED IN SECTION 25, BWM MAKES NO WARRANTY, WHETHER EXPRESSED OR IMPLED OR ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE IN CONNNECTION WITH BWM’S PRODUCTS OR SERVICES. PURCHASER MUST NOTIFY BWM WITHIN THE WARRANTY PERIOD OF ANY WARRANTY CLAIM. BWM’S WARRANTY EXTENDS ONLY TO THE FIRST PURCHASER OF A PRODUCTS FROM BWM OR BWM’S AUTHORIZED DISTRIBUTOR. IN NO EVENT WILL BWM BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL, INDIRECT, LOST PROFITS, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM THE PRODUCTS OR SERVICES, IRRESPECTIVE OR WHETHER THE CLAIM RISES FROM ACTUAL OR ALLEGED BREACH OF WARRANTY, INDEMNIFICATION OBLIGATIONS, BREACH OF AGREEMENT, TORT, PRODUCT LIABILITY, NEGLIGENCE, CONTRIBUTION OR ANY LEGAL THEORY. UNDER NO CIRCUMSTANCES WILL BWM’S LIABILITY, IF ANY, EXCEED THE LESSER OF: (I) PURCHASER’S ACTUAL DAMAGES OR (II) THE AMOUNTS RECEIVED BY BWM FROM PURCHASER FOR THE PRODUCTS OR SERVICE WHICH ARE THE SUBJECT OF THE CLAIM.
15. LAW – THE AGREEMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. ALL LEGAL ACTIONS ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL BE FILED AND CONDUCTED EXCLUSIVELY IN A STATE OR FEDERAL COURT IN MASSACHUSETTS OF COMPETENT JURISDICTION AND VENUE. PURCHASER HEREBY WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY OF ANY CLAIM ARISING IN CONNECTION WITH THE AGREEMENT. PURCHASER WILL PAY ALL COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEY’S FEES, INCURRED BY BWM IN ENFORCING THE TERMS OF THE AGREEMENT.
16. PURCHASER OBLIGATIONS – BWM shall be relieved of its warranty obligations hereunder in the event of Purchaser’s failure: (a) to operate the systems treated with BWM’s Products and all related equipment and processes within control parameters or, if none, within industry customary operating conditions; (b) to maintain its 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 Products or (e) to provide complete and accurate system data.
17. OPERATING CONDITIONS – BWM agrees to supply Products and Services pursuant to the terms of the Proposal. Water treatment chemicals, water test kits, and testing reagents will be supplied in quantities consistent with normal operating conditions and the terms of the Proposal. The Proposal may also provide for field and laboratory Services as needed to insure adequate supervision of the water treatment program. Water treatment feed/control equipment is not included but may be purchased separately. Minor, temporary upsets in plant water chemistry are allowable. However, continued malfunctioning of HVAC equipment or excessive water consumption will not obligate BWM to provide water treatment chemicals in excess of the quantity required under normal operating conditions. BWM will bring to your attention any conditions which may limit Products, Services, labor and materials supplied under the Agreement.
18. PAYMENT FOR EXCESSIVE USAGE; LOST AND DAMAGED PRODUCTS; AND PAYMENT FOR UNUSED PRODUCT– If payment is a fixed amount, or based on Purchaser’s usage or production (and payment is not for the actual amount of Products delivered), then Purchaser shall pay for all Products (a) consumed as a result of a failure to comply with the terms of Section 17 above or (b) lost or damaged after delivery to Purchaser, including loss from theft, force majeure, unexplained disappearance, damage, or otherwise (“Excessive Consumption”). BWM shall replace Products lost through Excessive Consumption and shall invoice Purchaser separately for such Products upon their delivery, which invoice shall be paid within thirty (30) days of its receipt. Upon termination or expiration of the Agreement, Purchaser shall pay BWM at then current prices for all unused Products. BWM shall not have any obligation to accept returns of unused Products.
19. OWNERSHIP; RETURN; AND USE OF EQUIPMENT, TANKS, AND CONTAINERS – Title to, and ownership of, all SAFE® tanks, pumps, and equipment shall remain the property of BWM unless expressly otherwise stated by BWM in writing. Leased tanks, pumps and equipment are leased to Purchaser during the applicable term. SAFE® tanks owned by BWM shall be used only for the storage of Products sold by, or approved by, BWM. SAFE® tanks and other equipment owned by BWM shall be returned immediately upon termination of the Agreement or within thirty (30) days of a demand by BWM.
20. PRODUCT RETURNS: DISPOSAL – (a) Non-Warranty Returns: Products which are not returned pursuant to a warranty claim, may only be returned with BWM’s prior written approval which shall be in its sole discretion and will be subject to BWM’s acceptance that such Products are in salable condition. Returns accepted by BWM which are made pursuant to Section 20(a) will receive a credit only. BWM will assess charges for freight both ways and costs necessary to restore such Products to BWM’s warehouse inventory. If products are determined not to be saleable, Purchaser will be assessed the cost of disposing of the Products. The amount of credit given will depend upon the degree of salability of the Products as determined in BWM’s sole discretion. (b) Warranty Returns: Products returned pursuant to a warranty claim made by Purchaser in accordance with the requirements of Section 25, shall be returned immediately upon discovery and, in any event, prior to the expiration of the Warranty Period. Warranty claims shall specify in detail how the Products are nonconforming to BWM’s published specifications. With respect to any chemicals or other materials which are subject to a warranty claim, Purchaser will first return a sample of the chemicals and materials to BWM for testing and BWM will inform Purchaser if additional samples are needed or whether the remaining chemicals and materials should be returned to BWM or disposed by Purchaser. Purchaser shall be responsible for disposal of any chemicals, materials, residue or waste from the Products (including containers) in accordance with applicable laws. Purchaser hereby shall indemnify, defend, and hold BWM harmless from and against all third party claims or liabilities, costs, damages and expenses (including attorneys’ fees) that BWM may suffer as a result of Purchaser’s breach or default of this Section 20.
21. INSTALLATION AND MAINTENANCE OF TANKS AND EQUIPMENT – Purchaser shall be responsible for the installation of all water treatment equipment and the maintenance of all equipment owned by Purchaser.
22. SECONDARY CONTAINMENT AND SAFETY FEATURES – Purchaser shall not remove or deactivate or cause to not be used any safety features or secondary containment, and Purchaser hereby shall indemnify, defend, and hold harmless BWM from and against all damages, expenses (including attorneys’ fees) that BWM may suffer as a result of Purchaser’s breach of this Section 22.
23. TERM AND TERMINATION – The initial term of the Agreement will be set forth in the applicable Proposal. In the absence of a stated term in the applicable Proposal if the Products or Services are ongoing by nature, the initial term shall terminate on the first anniversary of the date of the Proposal. For ongoing Products and Services, upon the expiration date of the initial term, the Agreement shall automatically renew for successive terms of one (1) year each, unless either party provides written notice of its intent to terminate the Agreement by providing, not less than thirty (30) days prior written notice before the end of the then current term. From time to time, pricing adjustments may be required at the time of renewal. The Agreement and any order or delivery of Products or any Services may be terminated or suspended as follows: (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 thirty (30) days of receipt of written notice specifying in detail the default; (c) by BWM if it has reason to doubt the ability or willingness of Purchaser to pay for the Products; (d) by BWM if Purchaser fails to follow recommendations of BWM or fails to exercise, in BWM’s opinion, good Product stewardship; (e) by BWM if the sale or use of any of the Products might violate any intellectual property rights; or (f) by either party with a sixty (60) day written notice to the other party. In the event of termination, Purchaser will pay BWM all amounts due for all Products and Services ordered prior to the date of termination. In the event of termination, all obligations that by their nature should survive the termination of this Agreement shall continue.
24. NOTICES – Notices shall be in writing and sent to the parties at the addresses stated in the Proposal or to any other address specified by a party from time to time by written notice. Any notices required by the Agreement to be given to any party hereto shall be in writing and may be emailed if from BWM to Purchaser or mailed, by registered, certified or overnight mail, postage prepaid, return receipt requested or sent by national overnight courier to the party’s address as set forth on the signature page of the Agreement, or to the party’s last known address, if different. Notices shall be deemed to be given five (5) days after the date of mailing in the manner stated above.
25. WARRANTIES – BWM warrants to Purchaser that for a period of twelve (12) months from the date of delivery of the Products (“Product Warranty Period”), that Products manufactured by BWM shall conform to BWM’s published specifications. BWM warrants to Purchaser for a period of twelve (12) months from the date the Services are performed (“Service Warrants Period”), that the Services were performed in accordance with industry standards. The Product Warranty Period and the Service Warranty Period together (the “Warranty Period”). For Products not manufactured by BWM, the warranty shall be the manufacturer’s transferable warranty and BWM shall not provide any warranty. A claim for breach of BWM’s Product warranty, must be received by BWM within the Product Warranty Period or the claim shall not be valid. BWM’s liability and Purchaser’s exclusive remedy for any breach of BWM’s Product warranty is limited to, in BWM’s sole discretion, replacement of nonconforming Products or payment in an amount not to exceed the purchase price of the non-conforming Products. If any Service fails to meet the foregoing warranty during the Service Warranty Period, BWM shall, in BWM’s sole discretion, re-perform the Service or refund an amount not to exceed the amount paid for the Service.
26. COOLING TOWER, ICE MACHINE, DOMESTIC WATER TANKS, COIL CLEANING SERVICES AND DECORATIVE FOUNTAINS. – If BWM’s Water Hygiene Services have been purchased from BWM, such applicable Services are designed to minimize health-related risks associated with the growth of Legionella within domestic and industrial water systems. If BWM’s recommended practices are followed as outlined, the health-related risks from other waterborne pathogens will likewise be reduced. While recommendations from BWM’s Water Hygiene Services are designed to reduce health-related risks to Purchaser’s employees and associates, no program can eliminate health-related risks altogether. In addition, recommended practices presented in connection with such Services do not guarantee that water quality within the assessed systems will meet governmental or trade standards. Local regulations will override specific recommendations where relevant. Purchaser shall provide BWM with sufficient water to perform any pressure washing Services and access to areas covered by the Proposal. If Purchaser has any questions about the Products or Services please call before the start of your project.
27. REGULATORY REQUIREMENTS – Purchaser shall be responsible for complying with all laws (including, but not limited to, all local regulatory requirements) related to the installation, registration, labeling and operation of all Products after delivery of such Products, and Purchaser hereby agrees to indemnify, defend and hold harmless BWM from and against all damages and expenses (including attorneys’ fees) that BWM may suffer as a result of Purchaser’s breach or default of this Section 27. During the course of the Agreement regulations may change and Purchaser will be responsible for any additional costs or permit requirements including, but not limited to, costs associated with additional: (i) water sampling, (ii) services, (iii) paperwork, or (iv) project management. BWM will monitor the requirements and bring to Purchaser’s attention any relevant changes that will affect the current Products or Services in place and any associated additional costs.
28. WMP LIABILITY REGARDING INFORMATION – While BWM makes every effort to ensure that the information provided on WMP’s 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 provided by the Purchaser. Purchaser must make its own determination as to accuracy and suitability of provided information. 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 Purchaser.
29. LICENSE OF SERVICE TRACKING AND REPORTING PROGRAM (BARCLAY STAR®) – If the BARCLAY STAR® program (the “Program”) license is purchased, BWM hereby grants a limited, nonexclusive, nontransferable license to Purchaser to use the Program for the water management of one building or multiple buildings located on one campus. The Program may be used only by Purchaser’s employees or agents and may not be donated, sold, distributed, or commercially exploited in any form. Purchaser may not alter, delete or conceal any copyright or other notices contained in the Program, including notices on any materials Purchaser downloaded, displayed, printed or reproduced from the Program. Purchaser shall not, nor will Purchaser allow any third party (whether or not for Purchaser’s 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 expressed prior written consent of BWM.
30. WMP HYPERLINKS – The appearance, availability, or use of third party URLs or hyperlinks referenced or included anywhere in any documentation, on BWM’s website, or in connection with use of 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. WMP does not verify, endorse, or have any responsibility for any such third party websites, third party business practices (including their privacy policies), or any products 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 Purchaser, in no event shall WMP assume or have any responsibility or liability.
31. WMP RISK ASSESSMENT – WMP risk assessment document, which may be provided if the applicable Services are purchased, 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. The WMP risk assessment 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 is 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 any recommendations are designed to minimize public health-related risks associated with the assessed water systems at Purchaser’s facility. It is not possible for any Service to eliminate all public health-related risks. The goal of WMP is to reduce, to the greatest extent possible, the health-related risks associated with building water systems. All WMP recommendations are based on current published guidelines and literature. Local regulations supersede any recommendations made by WMP.
32. INDEMNIFICATION – To the fullest extent permitted by law, Purchaser hereby agrees to indemnify, defend, and hold harmless BWM and its officers, directors, shareholders, employees, servants, and agents from and against any and all claims, liabilities, and expenses of any nature whatsoever, including, but not limited to attorney’s fees, with respect to any claims of any nature (a) arising from or caused in whole or in part by any negligent act or omission, or willful misconduct of Purchaser; or (b) arising from or in connection with the breach of any obligation of, Purchaser as set forth in the Agreement.