Terms and Conditions
3. License and Ownership
Bluewater grants You a limited, personal, nontransferable, nonsublicensable, revocable license to access and use only the Web Site, Content and Services only in the manner present by Bluewater only in the manner expressly permitted by Bluewater. Except for this limited license, Bluewater does not convey any interest in or to the Content, Services, Web Site or any other Bluewater property by permitting You to access the Web Site. Except to the extent required by law or as expressly provided herein, none of the Content may be reverse-engineered, modified, reproduced, republished, translated into any language or computer language, re-transmitted in any form or by any means, resold or redistributed without the prior written consent of Bluewater. You may not make, sell, offer for sale, modify, reproduce, display, publicly perform, import, distribute, retransmit or otherwise use the Content in any way, unless expressly permitted to do so by Bluewtater.
4. Restrictions on Use of the Web Site
(a) You shall not disguise the origin of information transmitted through the Web Site or place false or misleading information on the Web Site.
(b) You will not use or access any service, information, application or software available via the Web Site in a manner not expressly permitted by Bluewater.
(c ) You will not input or upload to the Web Site any information which contains viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, the Web Site or Information or that infringes the Intellectual Property (defined below) rights of another.
(d) Certain areas of the Web Site may be restricted to customers of Bluewater.
(e) You may not use or access the Web Site or Services in any way that, in Bluewater’s judgment, adversely affects the performance or function of the Services or the Web Site or interferes with the ability of authorized parties to access the Services or the Web Site.
(f) You may not frame or utilize framing techniques to enclose any portion or aspect of the Content or the Information, without the express written consent of Bluewater.
(b) Inbound Links. Linking to any page of the Web Site other than to http://www.bluewaterthermal.com through a plain text link is strictly prohibited in the absence of a separate linking agreement with Bluewater. Any web site or other device that links to http://www.bluewaterthermal.com or any page available therein is prohibited from (a) replicating Content, (b) using a browser or border environment around the Content, (c )implying in any fashion that Bluewater or any of its affiliates are endorsing it or its products, (d) misrepresenting any state of facts, including its relationship with Bluewater or any of its affiliates, (e) presenting false information about Bluewater products or services, and (f) using any logo or mark of Bluewater or any of its affiliates without express written permission from Bluewater.
You agree that Bluewater, in its sole discretion, may terminate or suspend Your use of the Web Site, the Services and Content at any time and for any or no reason in its sole discretion, even if access and use continues to be allowed to others. Upon such suspension or termination, You must immediately (a) discontinue use of the Web Site, and (b) destroy any copies You have made of any portion of the Content. Accessing the Web Site or Services after such termination, suspension or discontinuation shall constitude an act of trespass. Further, You agree that Bluewater shall not be liable to You or any third party for any termination or suspension of Your access to the Web Site and/or the Services.
DISCLAIMER OF WARRANTIES
BLUEWATER MAKES NO REPRESENTATIONS ABOUT THE RESULTS TO BE OBTAINED FROM USING THE WEB SITE OR THE CONTENT. THE USE OF SAME IS AT YOUR OWN RISK.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY, SO THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU. IF YOU ARE DEALING AS A CONSUMER, YOUR STATUTORY RIGHTS THAT CANNOT BE WAIVED, IF ANY, ARE NOT AFFECTED BY THESE PROVISIONS. YOU AGREE AND ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND WARRANTY PROVIDED IN THESE TERMS OF TUSE ARE FAIR AND REASONABLE.
9. LIMITATION OF LIABILITY
10. Compliance with Law
You agree to use the Web Site in strict compliance with all applicable laws, rulings and regulations and in a fashion that does not, in the sole judgment of Bluewater, negatively reflect on the goodwill or reputation of Bluewater and shall take no action which would cause Bluewater to be in violation of any laws, rulings or regulations applicable to Bluewater.
11. Governing Law
These Terms and Conditions are to be governed by and construed in accordionce with the law of the State of New York without reference to its conflicts of law rules. You agree that any action at law or in equity arising out of or relating to these terms shall be filed only in the state or federal courts located in the New York County in the State of New York.
13. COMPLETE AGREEMENT
Our site’s contact, quote request, and job application forms require you to give us valid contact information. We use your contact information from these forms to fulfill your requests for information, contact management, and giving you the best customer service.
We do not sell, rent, barter or exchange your personal information with any third parties.
From time to time, profile data may also be collected at our site. We may use this data to tailor your experience at our site, showing you content that we think you might be interested in and displaying content according to your preferences. This information is shared on an internal basis only. No individual personal information is revealed to third-parties without your permission.
Sales Terms & Conditions
Standard Terms and Conditions of Sale (“Terms and Conditions”)
“Services” means the thermal processing and/or other services performed by Bluewater Thermal Services (“BTS”) to the customer ordering or requesting such Services (the “Customer”). “Goods” means any products of Customer upon which BTS has performed or will perform the Services in accordance with the terms of an Order. An “Order” means any oral or written request or order for Services, including any formal purchase order submitted by a Customer.
Order Number, Invoicing
BTS shall issue an order number upon acceptance of an Order, and such number must appear on all invoices, packages, shipping documents or any other documents pertaining to Goods upon which Services are to be performed. Customer shall notify BTS immediately if Customer is unable to meet any of the requirements set forth in the Order, including delivery terms. Each accepted Order shall be invoiced separately, and Customer shall pay for each shipment as invoiced in accordance with Section 6 below.
Delivery, Shipping and Risk of Loss.
(a) All specified delivery dates are estimated, and such delivery of Goods by BTS is contingent upon prompt receipt by BTS of (i) the Order, (ii) complete and detailed current specifications (including any prints or drawings) satisfactory for production of the Order, (iii) the Goods upon which the Services are to be performed, (iv) all other information necessary to permit BTS to proceed with work immediately and without interruption, and (v) satisfactory assurance of compliance with the agreed terms of payment.
(b) Unless BTS has quoted pricing and terms for delivery, pick-up and trucking, all Goods are shipped F.O.B. BTS’s location. Risk of loss of any Goods in transit shall pass upon delivery to the F.O.B. point. The party undertaking risk of loss is solely responsible for all shipping and delivery charges and shall maintain adequate insurance with reputable carriers covering the replacement value of such Goods in transit.
Customer shall inspect any and all Goods processed by BTS promptly upon receipt thereof and shall promptly notify BTS of any objections to the Goods or the Services performed by BTS not later than three (3) working days after Customer’s receipt of such Goods. If Customer does not notify BTS of its objection within such time period, or Customer refuses to inspect or otherwise fails to inspect the Goods upon receipt, Customer shall be deemed to have accepted the Goods and the Services as conforming to specification and otherwise meeting the requirements of the applicable Order.
(a) No order accepted by BTS may be changed or cancelled by Customer (in whole or in part) unless BTS agrees to such change or cancellation in writing or such cancellation is due to breach by BTS. Accepted changes to an Order may result in a delay in the scheduled delivery date and/or a change in price. Any change in price or delivery will be as agreed to by Customer and BTS.
(b) Upon any cancellation (in whole or in part) including any cancellation for breach, Customer shall pay all costs and expenses (including overhead and administrative expenses) incurred by BTS on the Order up to the effective date of cancellation.
Prices are as quoted by BTS and are subject to change upon notice to Customer. Payment terms are net thirty (30) days following the date of invoice unless otherwise agreed by the parties. A service charge of 1.5% per month will be charged on past due invoices. If Customer’s account remains past due for more than sixty (60) days following the date of invoice such past due account shall be subject to collection. Accounts subject to collection will be referred to an attorney and Customer agrees to pay all costs and expenses of such collection, including reasonable attorney’s fees, in connection with such collection. BTS reserves the right, without any liability whatsoever to Customer or any other person or entity, to suspend performance, refuse to accept additional releases or orders, stop delivery of Goods in transit, decline to deliver except for cash, require payment prior to shipment, and/or restrict or modify payment terms whenever Customer’s account is delinquent or if, in BTS’s sole discretion, BTS has reason to doubt Customer’s solvency, financial condition or ability to pay.
BTS will not be liable for its failure to perform hereunder due to any cause or event beyond its reasonable control, including without limitation, acts of God, acts of terrorism, fire, flood, inability to obtain material at reasonable prices, volatility of utility costs, equipment or transportation, governmental laws or regulation, accidents, labor disputes, strikes, lockouts or shortages, or other similar matters. In the event of a force majeure event, BTS will notify Customer and will attempt to minimize the duration of any impact on its ability to perform under an Order due to such force majeure event.
Warranty, Liability, Indemnification
(a) Given the uncertainties and hazards inherent in all thermal processes, Customer acknowledges and accepts that BTS’s liability with respect to any Order shall be limited in the manner provided for in the Metal Treating Institute’s Limits of Liability (the “MTI Limits”) which have been adopted by BTS and which are incorporated by reference herein. A copy of the MTI Limits is available for review below. Customer acknowledges that it has read the MTI Limits, is familiar with the contents of such provisions, and agrees to such terms and the application of all such provisions to all Services performed by BTS, whether such work is performed now or in the future. In the event that BTS prevails in any legal action brought by or on behalf of Customer against BTS, Customer shall pay all fees, expenses and costs of BTS incurred as a result of such legal action, including its legal, professional, court and other fees and expenses.
Metal Treating Institute’s Limits of Liability
(b) Customer shall defend, indemnify and hold BTS harmless from any and all third party claims brought against BTS relating in any way to the manufacturing, sale, processing, distribution or use of the Goods or the performance of the Services if the Goods have been subjected to previous or further processing, assembly or work following performance of the Services by BTS.
(a) Governing Law; Venue. This contract has been made in, and will be construed and enforced in accordance with the laws of, the State of New York without regard to its principles of conflicts of laws. Customer and BTS consent to the exclusive jurisdiction of the state and federal courts sitting in New York County, New York for any actions, suits or other proceedings arising out of, or related to, the enforcement of either party’s rights hereunder. BTS and Customer agree not to commence any action suit or proceeding in any other court and hereby irrevocably and unconditionally waive any objection to the laying of venue in any such court. The Uniform Commercial Code expressly does not apply to any Order, Offer to Sell or any Services sold hereunder.
(b) Additional Agreed Terms, Entire Agreement, Acceptance, Modification. Any additional, Order-specific terms (“Additional Terms”) shall be agreed between BTS and Customer and shall be set forth upon the applicable Order documentation. To the extent such Additional Terms conflict with the Terms and Conditions, the Additional Terms shall control. Unless otherwise agreed to in writing by BTS, the Terms and Conditions (including, if applicable, any Additional Terms) and the terms of any of BTS’s standard forms executed in connection with a particular Order constitute BTS’s entire offer to sell the Services to the Customer (“Offer to Sell”), constitute the entire agreement between BTS and the Customer with respect to the subject matter thereof, and supersede all prior or contemporaneous communications and agreements. The Terms and Conditions (including, if applicable, any Additional Terms) shall apply to all Orders received from Customer. Customer’s acceptance of BTS’s Offer to Sell and BTS’s performance of the Order (in whole or in part) are expressly limited to, and conditioned upon, Customer’s acceptance of the Offer to Sell, which may not be changed or waived except in a writing signed by both parties. Without limitation on the foregoing, BTS’s performance of an Order shall not be considered acceptance of any counter-offer or terms provided by Customer and BTS will not be bound by, hereby objects to, and rejects, any additional provision or any provision at variance with these Terms and Conditions or any other part of BTS’s Offer to Sell that may appear in Customer’s purchase order, standard terms and conditions, acknowledgments, form agreements, notices or in any other document or communication from Customer to BTS, or any updates or amendments thereto. These Terms and Conditions may only be modified by a writing signed by the President and Chief Executive Officer or Chief Operating Officer of BTS.
(c) Survival. The provisions of Sections 7 and 8 and this Section 9 will survive the expiration or termination of this contract.
(d) Severability. In case any one or more of the provisions or parts of a provision contained herein are, for any reason, held to be invalid or illegal, such invalidity, illegality or unenforceability will not affect any other provision or part of a provision hereof, but these Terms and Conditions (including, if applicable, any Additional Terms) will be reformed and construed as if such invalid or illegal or unenforceable provision or part of a provision had never been contained herein and such provision or part will be reformed so that it is valid, legal and enforceable while retaining, to the maximum extent permitted, as much as possible of the original intent of the provision.
(e) Independent Contractors. Customer and BTS are independent contracting parties and nothing in the Order or BTS’s Offer to Sell shall make either party the employee, partner, joint venturer, agent or legal representative of the other for any purpose. Neither the Order, nor the Offer to Sell, grants either party any authority to assume or to create any obligation on behalf of or in the name of the other. Each party understands that the other manufactures products or performs services for sale to a wide variety of customers and that nothing in these Terms and Conditions (including, if applicable, any Additional Terms) precludes either party from selling its products to customers or competitors of the other.
MTI Statement of Limited Liability
(Please Read Carefully)
ALL WORK IS PERFORMED SUBJECT TO THE FOLLOWING TERMS:
THE BUYER OF METAL TREATING SERVICES FROM THE SELLER, UNDERSTANDS THAT EVEN AFTER EMPLOYING ALL THE SCIENTIFIC METHODS KNOWN TO THE SELLER, HAZARDS STILL REMAIN IN METAL TREATING. THE BUYER THEREFORE AGREES THAT SELLER’S LIABILITY SHALL NOT EXCEED TWICE THE AMOUNT OF THE CHARGES FOR THE WORK DONE ON ANY MATERIAL. THE BUYER AGREES AND UNDERSTANDS THAT THIS LIMITATION OF LIABILITY IS NOT AN EXCULPATORY CLAUSE. THE REIMBURSEMENT AND FULL LIABILITY OF THE SELLER SHALL NOT EXCEED TWICE THE AMOUNT OF THE CHARGES FOR THE WORK DONE BY THE SELLER ON ANY MATERIAL. THIS IS INTENDED TO REIMBURSE THE BUYER FOR THE CHARGES AND TO FULLY COMPENSATE THE BUYER IN THE AMOUNT OF THE CHARGES. THIS TERM APPLIES TO ALL WORK DONE BY THE SELLER EXCEPT WHERE OTHERWISE AGREED TO IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE SELLER.
THE BUYER, BY CONTRACTING FOR METAL TREATMENT, AGREES TO ACCEPT THE LIMITS OF LIABILITY AS EXPRESSED IN THIS STATEMENT TO THE EXCLUSION OF ANY AND ALL OTHER PROVISIONS AS TO LIABILITY THAT MAY BE SET FORTH IN THE BUYER’S OWN INVOICES, PURCHASE ORDERS OR OTHER DOCUMENTS. IF THE BUYER PROPOSES A DIFFERENT OR ADDITIONAL LIABILITY PROVISION, THE SAME MUST BE AGREED TO IN WRITING AND SIGNED BY AN OFFICER OF THE SELLER BEFORE WORK IS STARTED OR SERVICES ARE PROVIDED. IN SUCH EVENT, THE BUYER UNDERSTANDS THAT A DIFFERENT CHARGE FOR SERVICES MUST BE AGREED ON, REFLECTING THE HIGHER RISK TO THE SELLER AND THAT NO WORK WILL BE STARTED UNTIL BOTH THE SELLER AND THE BUYER HAVE SIGNED AN AGREEMENT SETTING FORTH THE NEW CHARGES AND TERMS OF LIABILITY. OTHERWISE, THE TERMS SET FORTH HEREIN ARE BINDING ON THE BUYER.
IT IS AGREED BY THE BUYER AND THE SELLER THAT THE INABILITY TO DISCOVER A DEFECT WITHIN A REASONABLE PERIOD OF TIME AFTER THE RECEIPT OF A SHIPMENT OF HEAT TREATED MATERIAL, NOT TO EXCEED FIVE (5) BUSINESS DAYS, WILL NOT VOID THE LIMITATION OF LIABILITY CONTAINED IN THIS AGREEMENT. IT IS THE BUYER’S OBLIGATION TO NOTIFY THE SELLER IF IT DOES NOT AGREE TO THE LIMITATION OF LIABILITY CONTAINED HEREIN AND A FAILURE ON THE PART OF THE BUYER TO DO SO IN WRITING BEFORE WORK STARTS WILL BE DEEMED ACCEPTANCE OF THIS LIMITATION OF LIABILITY.
THE SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AS TO THE PERFORMANCE OR CAPABILITIES OF THE MATERIAL AS HEAT TREATED, OR THE HEAT TREATMENT. THE AFOREMENTIONED LIMITATION OF LIABILITY STATED ABOVE IS SPECIFICALLY IN LIEU OF ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, AND ANY OTHER SUCH OBLIGATION ON THE PART OF THE SELLER.
THE SELLER’S LIABILITY TO THE BUYER SHALL CEASE ONCE ANY FURTHER PROCESSING, ASSEMBLING OR ANY OTHER WORK HAS BEEN UNDERTAKEN BY THE BUYER OR ANY THIRD PARTY.
No claims for shortage in weight or count will be entertained unless presented in writing within five (5) business days after receipt of materials by the Buyer. No claims will be allowed for shrinkage, expansion, deformity, or rupture of material in treating or straightening, except by prior written agreement, as above, nor in any case for rupture caused by or occurring during subsequent grinding. Whenever the Seller is given material with detailed instructions as to treatment, the Seller’s responsibility shall end with the execution and completion of those instructions. Failure by the Buyer to indicate plainly and correctly the kind of material (i.e., proper alloy designation) to be treated, shall cause an extra charge to be made to cover any additional expense incurred as a result thereof, but shall not change the LIMITATION OF LIABILITY stated above. When the Buyer provides specifications for the heat treating service to be provided, makes changes in the kind of materials (i.e. proper alloy designation) to be treated, or changes the process to be used, the Buyer specifically understands and agrees that this LIMITATION OF LIABILITY shall remain in effect, but that additional charges for services will be due and owing to cover the additional expense incurred as a result of changes made by the Buyer.
The Buyer agrees there will be no liability on the Seller in contract or tort (including negligence and strict liability) for any special, indirect or consequential damages arising from any reason whatsoever, including but not limited to personal injury, property damages, loss of profits, loss of production, recall or any other losses, expenses or liabilities allegedly occasioned by the work performed on the part of the Seller.
No agent or representative is authorized to alter the conditions, except in writing duly signed by an officer of the Seller.
The Seller’s services and work are expressly limited to the terms and conditions contained on the face and back of the Seller’s quotation, purchase order, sale acknowledgement or other forms. Any different or additional terms contained in any of the Buyer’s forms are hereby deemed to be a material alteration and notice of objection to them is hereby given.
Copyright 2015 © Metal Treating Institute. All Rights Reserved.