Standard Terms and Conditions of Sale (“Terms and Conditions”)
- Definitions“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, InvoicingBTS 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.
- Inspection. 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.
- Changes; Cancellations. (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.
- Pricing; Payment. 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.
- Force Majeure. 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.
(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.
- Miscellaneous. (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.