Terms and Conditions of Sale
Last Updated: July 28, 2021
1. AGREEMENT. The contract of sale resulting from Barclay’s documentation together with these terms and conditions (“Contract”) constitutes the entire agreement between the parties hereto, except as modified in writing signed by both Barclay and Purchaser. Any terms in a purchase order, irrespective of their materiality, which are either different from or additional to Barclay’s conditions of sale, are objected to and are excluded unless Barclay expressly agrees in writing to such terms. Execution of such forms by Barclay to accommodate Purchasers procurement or accounting procedures or to evidence agreed upon change orders shall not be construed as assent to Purchaser’s Terms. Acceptance of the goods shipped shall constitute assent to Barclay’s conditions of sale. This Contract shall be binding upon Purchaser and Barclay, and on their successors and assigns.
2. PROPOSAL OR QUOTATION. A proposal shall not become binding upon Barclay until it has been executed and returned by Purchaser. An oral quotation shall not be considered an offer, only a written confirmation thereof incorporating Barclay’s terms and conditions shall constitute an offer.
3. CREDIT. Credit terms of payment must have the approval of Barclay’s Credit Department. If Purchaser’s credit is found by Barclay to be unsatisfactory, Barclay may rescind or terminate this contract. If at any time, Purchaser’s financial responsibility becomes impaired or unsatisfactory to Barclay, Barclay 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 Barclay and in the absence thereof, to cancel the unfilled portion of the Contract. Barclay will notify Purchaser promptly of its decision to stop shipments and give an advance notice to the extent this is possible.
4. PAYMENT. Specific terms of payment for this order shall be Net 30 days. Purchaser agrees to make payment to Barclay’s location specified in this Contract unlawful money of the United States. Purchaser further agrees to make all payments when due to Barclay in accordance with the agreed terms of payment in this Contract without reference to Purchaser’s agreement with or payments by the owner and with no right of retention.
5. INTEREST & COSTS. Purchaser agrees to pay interest at 1-1/2% per month (to the extent permitted by law) on all delinquent balances if and when assessed by Barclay, and any attorney’s fees or court costs arising out of and made necessary in collection of its obligation to Barclay created by this Contract.
6. TAXES. Any federal, state or local tax assessment, fee, duty or charge hereafter imposed on or measure by the products purchased hereunder shall be for Purchaser’s account unless Purchaser furnishes Barclay an acceptable exemption certificate from each such tax, fee, duty or charge prior to shipment.
7. MATERIAL SAFETY DATA SHEET. Barclay will provide Purchaser with a material safety data sheet with information concerning the material and precautions to be taken in the material’s storage and handling. Purchas shall be responsible for knowing all such information and precautions disclosed in the material safety data sheet and for conveying such information to persons who may be exposed to the material.
8. FORCE MAJEURE. Barclay shall make delivery in accordance with the terms of the Contract or within a reasonable time in the absence of any commitment, but Barclay shall not be liable for delays or defaults in delivery caused by floods, fires, storms, 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, action of any governmental authority or other conditions beyond Barclay’s reasonable control.
9. CANCELLATION. If Purchaser desires to cancel or change any portion of this Contract, he must make such required in writing to Barclay. Barclay may, in its sole discretion, accept or reject any such request. If accepted, the Purchaser nonetheless must take delivery and make payment to Barclay for all material manufactured and in process of manufacture at time of notice, and all special materials ordered at time of notice and for which Barclay must take delivery, unless otherwise agreed by Barclay in writing. All such materials must be removed from Barclay’s premises within 30 days after payment and payment will be due at time of notice. Barclay also reserves the right to make a cancellation charge in the event of cancellation by the Purchaser of an order placed in Barclay’s shipping schedule and acknowledged by Barclay.
10. PRICES. Prices are subject to change without notice. Orders based on published prices and accepted for scheduled shipment will be invoiced at Barclay’s applicable price in effect on the scheduled date of shipment, unless otherwise specifically noted on the order acknowledgement. All prices will be in accordance with applicable government regulations. Orders specifying palletizing or special packaging will involve special charges.
11. DELAYS. All orders are accepted subject to Barclay’s ability to make delivery at the time and in the quantities specified, and Barclay 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 Barclay because of Purchaser’s delay in furnishing requested information to Barclay, delay resulting from order changes by Purchaser, or delay in unloading shipments at delivery point.
12. SHIPMENT. Barclay will select method of shipment and routing when transportation charges are for account of Barclay. When shipping instructions are specified by the Purchaser, all costs will be for the account of the Purchaser. The foregoing includes, but is not limited to, carrier’s charges for notification prior to delivery, demurrage, delay in unloading, diversion or reconsignment.
13. TITLE. Title to products transfers upon delivery to Purchaser at the F.O.B. point of delivery which will be clearly set forth in the shipment terms of this Contract. On receipt of title, Purchaser is then responsible for proper protection of product, placement, compliance, with all regulations and ordinances, and will indemnify Barclay against all claims for personal injuries or property damage arising from the storage, use or handling of such products.
14. TRANSIT CLAIMS. Claims for damage or shortage in transit must be made against the carrier by the owner of the shipment according to the F.O.B. terms of the Contract. Purchaser has the responsibility to inspect shipments before or during unloading to identify any such damage or shortage and see that appropriate notation is made on the delivery tickets or an inspection report furnished by the local agent of the carrier in order to support a claim.
15. CLAIMS. Notice of Claims against Barclay hereunder for any reason, must be made to Barclay in writing promptly after discover and within any applicable warranty period. Failure to give such notice to Barclay shall constitute a waiver by Purchaser of any right later to assert such a claim.
16. RETURNS. Returned goods shall be accepted for credit only if in salable condition and only with evidence of Barclay’s prior written consent. Barclay will assess charges for freight both ways and costs necessary to restore such goods to the Barclay Warehouse inventory. The amount of credit given will depend further upon the degree of salability of products accepted in opinion of Barclay.
17. PATENTS. Barclay agrees to defend, and to protect Purchaser against loss or damage arising out of any legal actions for patent infringement in connection with the manufacture of its products sold to Purchaser, provided Barclay is notified promptly of any such action with complete information and is given an opportunity to defend.
18. WARRENTY, LIMITATION OF LIABILITY. Barclay warrants title to each individual product sold under this Contract and further warrants for a period of one (1) year after shipment, but only to the extent and limit of the purchase price paid for such individual product that such product conforms to the specifications set forth in the contract and is free from defects in material and workmanship under normal service and use for which it was designed. Barclay’s sole obligation and Purchaser’s exclusive remedy under this warranty shall be limited to one of the following, as selected by Barclay, delivering to Purchaser a replacement for any product of part thereof determined by Barclay to be defective, repairing such product or part, or refunding the purchase price (or an equitable portion thereof) paid for such product or part by Purchaser. BARCLAY MAKES NO WARRANTY OF FITNESS OR MERCHANTABILITY, AND NO OTHER WARRANTY, WHETHER EXPRESS OR ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE IMPLIED SHALL EXIST IN CONNNECTIONS WITH BARCLAY’S PRODUCTS OR ANY SALE OF USE, THEREOF. Purchaser must notify Barclay promptly and within the warranty period of any claim under this warranty. Barclay’s warranty extends only to the first purchaser of a product from Barclay or Barclay’s authorized distributor. All goods not manufactured by Barclay are warranted only to the extent of the warranties of the original manufacturer. Barclay disclaims any liability arising from tort, including strict liability, and Barclay further disclaims any liability (whether arising under this or any other provision of this Contract or otherwise) for any costs (including costs of removal or replacement), liabilities, lost profits, loss of good will or any other general, special incidental or consequential damages incurred by Purchaser in connection with this Contract or any product purchased thereunder.
19. LAW. This order shall be governed by and shall be construed by the law of the State of Massachusetts.
20. GOVERNMENTAL REGULATIONS. Barclay warrants that no code, law, regulation or ordinance of the United States, a state or any other governmental authority or agency or any applicable Executive Order has been violated in the manufacture or sale of the items covered by this Agreement and warrants that the equipment, supplies, and/or articles covered thereby confirm with all requirements.
21. EQUAL OPPORTUNITY & AFFIRMATIVE ACTION. Barclay adheres to the Equal Opportunity Clause of 41 FR 60-1.4.
22. 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 treated with BWM’s Goods 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.
23. Payment for Excessive Usage; Lost and Damaged Goods – If payment is a fixed amount, or based on Buyer’s usage or production (and payment is not for the actual amount of Goods delivered), then Buyer shall pay for all Goods (a) consumed as a result of a failure to comply with the terms of section 5 above or (b) lost or damaged after delivery to Buyer, including loss from theft, force majeure, unexplained disappearance, damage, or otherwise (“Excessive Consumption”). BWM shall replace Goods lost through Excessive Consumption and shall invoice separately for such Goods upon their delivery, which invoice shall be paid within 30 days of receipt.
24. Payment for Unused Product – Upon termination or expiration of this Agreement, Buyer shall pay at then current prices for all unused Goods. BWM shall not have any obligation to accept returns of unused Goods.
25. 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 detailed in writing. In the event that Buyer decides to purchase some or all Goods, then all amounts still owing for terminated purchases shall immediately be due and shall be paid within 30 days of receipt of an invoice. SAFE® tanks owned by BWM shall be used only for the storage of goods sold by, or approved by, BWM. SAFE® tanks and other equipment owned by BWM shall be returned within 30 days of a demand by BWM.
26. Product Returns: Disposal – BWM shall have no responsibility to accept any returns of Goods unless Buyer has given timely notice (in no event longer than 90 days after delivery) that the Goods are nonconforming to specifications. Buyer shall be responsible for disposal of any excess Goods, residue or waste from the Goods (including containers) in accordance with applicable laws, and Buyer hereby indemnifies BWM from and against all third party claims or liabilities, expenses or legal fees (“Costs”) BWM may suffer as a result of Buyer’s breach or default of this covenant.
27. Installation and Maintenance of Tanks and Equipment – Buyer shall be responsible for the installation of all water treatment equipment and the maintenance of equipment owned by it.
28. Secondary Containment and Safety Features – Buyer shall not remove or deactivate or cause to not be used any safety features or secondary containment, 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.
29. 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 for the Goods; (d) by BWM if Buyer fails to follow recommendations of BWM or fails to exercise good product 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 with a 30 day written notice.
30. 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.
31. Warranties – BWM warrants to Buyer, for a period of 12 months from the date of delivery of the Goods or Services, that Goods manufactured 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. For Goods not manufactured by BWM, the warranty shall be the manufacturer’s transferable warranty. A claim for breach of the foregoing warranties must be received by BWM within 12 months of the use or providing of the Goods or 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 nonconforming Goods or payment in an amount not to exceed the purchase price of the non-conforming Goods. 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.
32. 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.
33. 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. BWM shall have the right to apportion deliveries of Goods on such basis as may appear to it to be equitable.
34. 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.
35. Indemnification – BWM does not agree to indemnify Buyer for any Costs and any such provisions in any contract documents of Buyer are void.
36. Limitation on Liability – 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