1. By requesting that Bluewater provide certain thermal processing services (“Services”) on the product/material/goods of the customer (“Goods”), the customer hereby agrees that these Terms and Conditions of Sale & Statement of Limited Liability Policy (“Terms”) shall apply notwithstanding any contrary provisions contained in any document delivered by the customer to Bluewater (heretofore or hereafter), including, without limitation, any request for quotation, purchase order(s), shipping document, or acknowledgment form provided by the customer or any of its agents and even if such documents contain language mandating that the provisions contained in such documents override or invalidate any contrary provisions contained in herein. By paying Bluewater’s invoices for Services rendered, the customer agrees that these Terms shall apply to the Services covered by said invoice and that no provision stated herein shall be modified by any provision in any document presented by the customer at any time. Bluewater’s acceptance of any performance of Services to the customer is expressly conditioned on agreement by the customer to these Terms. Bluewater’s performance of Services shall not be considered acceptance of any counter-offer or terms provided by customer, and Bluewater will not be bound by, herby objects to, and rejects any additional provision or any provision that varies from the these Terms.
2. Charges for Services rendered are due net 30 days from Bluewater’s date of billing without any right of alteration, unless otherwise mutually agreed, in writing, and signed by the customer and an authorized representative of Bluewater, prior to the time any Services are rendered. A service charge of 1.5% per month of the full value of the Services rendered shall be applied on past due invoices. Bluewater reserves the right on any past due accounts (defined as accounts remaining past due for greater than 60 days from the date of invoice) to (1) suspend performance of any order for the customer and/or withhold delivery of any of the customer’s Goods, (2) place past due accounts on C.O.D. status, (3) seek collection of payment through a 3rd party, (4) stop any Goods in transit to the customer, (5) require payment for Services prior to shipment of Goods to customer, (6) amend, modify, or resitrict payment terms, or (7) exercise any other options necessary for collection. In addition, Bluewater shall be entitled to recover any and all costs of collection, including reasonable attorney fees or 3rd party collection costs, to enforce these Terms. All quotes by Bluewater are open for acceptance within 60 days from the date of issuance, unless otherwise specified. Bluewater, in its sole disrection, may approve credit memos for the cusomter. Any credit memo under $10,000 may be approved by a Bluewater General Manager. Any credit memo over $10,000 must be approved by both Bluewater’s CFO and COO or President. All credit memos must be in writing and signed by the appropriate Bluewater representative.
3. LIMITED WARRANTY. Bluewater warrants that it will perform the Services in a good and workmanlike manner reflecting our commitment to customer service and in accordance with the order (meaning the processing of product, material, parts, or otherwise) agreed to with the customer. Customer warrants that the Goods will be free from any incoming material defects that would negatively impact those Services performed. It is the duty of the customer to inspect the Goods immediately upon their return, and all claims under these Terms must be reported prior to the earlier of (a) 5 days following the delivery of the Goods to the customer, or (b) the time that the Goods are put to effective use or sold to others and before any further processing is peformed, assembled, or other work has been done on said Goods, such time not exceed 7 days after shipping from Bluewater (“Warranty Period”). All claims that detail a breach of warranty must be submitted in writing to Bluewater within this Warranty Period. All warranties are considered void if (a) the Goods are abused, misused, or modified, following delivery to the customer, (b) the customer has made any use of the Goods after it first discovers (or should have been able to discover or identify) that such Goods were damaged, defective or subject to incorrect processing/Services, (c) the Goods are improperly or incorrectly stored after delivery to or collection by the customer, or (d) the Goods arrived at Bluewater with material defects. Bluewater makes no representation or warranty as to the cleanliness of the Goods after Bluewater’s Services without prior written approval by an officer of Bluewater Being that risks exist in thermal processing, regardless of the sophistication of process controls and/or known methods available, Bluewater makes no warrantiy, either expressed or implied that the Goods serviced by Bluewater shall be merchantable or fit for a particular purpse. Bluewater also makes no other warranty, either expressed or implied, except where stated herein, and any and all other other warranties that may exist are hereby disclaimed.
4. Bluewater shall not be held liable for any uncommon, incidental, consequential, ancillary, unintended, resultant, punitive, or liquidated damages in connection with the Services rendered to the Goods or for the infringement of any of the obligations owed to customer. As stated above in Paragraph 3, the customer recognizes that there are certain risks inherent to the Services performed by Bluewater. If Bluewater’s legal liability is established for any cause or reason whatsoever, including, without limitation for breach of warranty, the sole and exclusive liability of Bluewater and the exclusive remedy of the customer shall be for Bluewater, at its sole option, to provide the customer with an amount equal to customer’s documented direct and actual damages, provided such damages shall not exceed two times the amount of the original charges for the Services to the Goods that gave rise to the liability or the cost to customer of replacement of the affected Goods. Bluewater also reserves the right to issue credit memos to customer for any monetary warranty or other obligations owed to customer. No agent or representative of Bluewater is authorized to alter the conditions of warranty or monetary reimbursement, except where expressly permitted (written consent and signed) by an officer of Bluewater.
5. Bluewater shall not be obligated to perform any type of metallurgical or laboratory testing of the Goods for hardness, tensile strength, yield strength, elasticity, fracture toughness, microstructure, cracking or otherwise; all such testing is the sole responsibility and obligation of the customer unless a duly authorized representative of Bluewater has certified in writing that it has performed such tests separately. Bluewater shall not be held liable for any alleged discrepancy in weight or piece count of the Goods, unless the claim is presented within five working days after receipt of the Goods by customer and only in the event that such a discrepancy in weight or count, if any, is verified by a representative of Bluewater. Bluewater reserves the right to revise price quotations and/or cover additional costs or expenses thereof in the event that the Customer suspends the requested Services performed on the Goods or as a result of inadequacy or inaccuracy of the customer’s instructions.
6. The Goods shall remain for the account of and at the sole risk of the customer during transportation to and from Bluewater’s facility, during loading and unloading, and while located at Bluewater’s facility performing the Service. Unless Bluewater has quoted pricing and terms for delivery, pick-up, and trucking, all Goods are shipped F.O.B. Bluewater location. - 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. The customer warrants that the Goods will not represent any hazard, environmental, safety, or otherwise, to Bluewater’s facilities or personnel. The customer further warrants that it is either the owner of the Goods or that it is authorized by the owner of the Goods to accept these Terms on the owner’s behalf.
7. The customer shall be liable for all costs, charges and any expenses whatsoever associated with the creation, consulting, verification, negotiation and action of any letter(s) of credit, the transfer of cash to Bluewater and/or the release of any shipping documents. The cost(s) of any variation or modification to an order requested by the customer after the date of the acceptance of an order shall, if such a variation or modification is accepted by a representative of Bluewater, be paid by the customer.
8. The customer shall be solely responsible for the adequate packing of Goods in order to protect them in transit to Bluewater against adverse weather conditions, impact damage, and/or any other transportation risks. The customer shall use packing materials suitable for re-use by Bluewater where Bluewater is responsible for delivering the Goods to the customer, unless, in writing, the customer and an authorized Bluewater representative have agreed upon other methods for Goods packaging. No warranty whatsoever is given by Bluewater that packing materials, cases, cartons and pallets will be returned to the customer. Wherever possible, however, these will be returned to the customer with the Goods.
9. The customer agrees to pay any excise, gross receipts, sales, uses or occupation tax or other tax/tariff levied upon any Services, contract, shipment, or delivery incident thereto and to be responsible for compliance with all applicable import/export laws of the United States or any foreign country the Goods come from when delivered to Bluewater’s facility or that are delivered to after the Services have been rendered.
10. Force Majeure: Bluewater shall not be held responsible for its failure to perform hereunder due to any cause or event beyond its reasonable control (a “force majeure event”), including, without limitation, acts of God, acts of terrorism, epidemic, pandemic, fire, flood, natural disaster, 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 occurrence of a force majeure event, Bluewater will notify the customer and will attempt to minimize the duration of any impact on its ability to perform Services under an order due to such force majeure event.
11. The laws of the State of Delaware shall govern the interpretation and enforcement of these Terms, exclusive of its choice of laws provisions. The parties hereby exclude the application of the UN Convention on Contracts for the International Sale of Goods (1980) and any amendments thereto. Any dispute arising out of these Terms or in relation to any Services may be brought in the federal or state courts located in Kent County, Delaware, and both parties expressly consent to the personal jurisdiction of such courts and waive any objection to the jurisdiction and venue thereof.
12. No employee, representative, or agent of Bluewater is authorized to alter, amend or waive these Terms or to assume any other obligation or liability for Bluewater, except where expressly permitted (written consenst and signed) by an officer of Bluewater.
13. The performance of any Services covered in each order shall have been performed in compliance with the Fair Labor Standards Act of 1938, as amended to the extent applicable to Bluewater.
14. 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 (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.
15. Each party may provide the other party confidential information. Confidentital information is defined as such information that has been identified as confidential and was not already known to the other and is not publicly known or available unless through the fault of the other, and includes, but is not limited to, trade secrets, proprietary drawings, sepcifications, and specific processing parameters. Each party agrees to maintain the other’s confidential information in confidence and not to disclose the same to any third party or use it without the prior written consent of the other. Each party shall retain ownership and all rights in and to such confidential information that is disclosed. The customer acknowledges that Bluewater’s business is primarily providing the Services to the Goods and that Bluewater has developed expertise and know-how over many years that may be useful in providing the Services to the customer. The customer further acknowledges that Bluewater may perform Services and other services (including services the same or similar as those provided to customer and including services to the same or similar goods as those of customer) in the normal course of its business for its other customers, without restriction. Bluewater has, at its disposal, mutual non-disclosure agreement language, should the customer wish to establish such a relationship that warrants use.
16. The customer shall indemnify Bluewater and hold Bluewater harmless from any and all third party claims brought against Bluewater 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 Bluewater.
17. All specified delivery dates are estimated, and such delivery of Goods by Bluewater is contingent upon prompt receipt by Bluewater of (a) the order, (b) complete and detailed current specifications (including any blueprints or drawings) satisfactory for production of the order, (c) the Goods upon which the Services are to be performed, (d) all other information necessary to permit Bluewater to proceed with work immediately and without interruption, and (v) satisfactory assurance of compliance with the agreed terms of payment. Times quoted for Services are estimates only and time shall not be of the essence in respect thereof.
18. The customer and Bluewater are independent contracting parties and nothing in the order or Bluewater’s offer to sell Services 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 (including, if applicable, any Additional Terms) precludes either party from selling its products to customers or competitors of the other. Unless the customer reasonably objects, Bluewater may sub-contract the whole or any part of an order. No order accepted by Bluewater for Services may be changed or cancelled by the customer (in whole or in part) unless Bluewater agrees to such change or cancellation in writing or such cancellation is due to breach by Bluewater. Upon any cancellation (in whole or in part), including any cancellation for breach, the customer shall pay all costs and expenses (including overhead and administrative expenses) incurred by Bluewater on the order up to the effective date of cancellation.
Revised April , 2024