Terms & Conditions
ACCEPTANCE OF YOUR ORDER IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO OUR CONDITIONS OF SALE BELOW, AND WE AGREE TO FURNISH THE GOODS AND SERVICES DESCRIBED IN YOUR ORDER ONLY UPON THESE CONDITIONS. If these terms are not acceptable, you should notify us at once. Unless otherwise agreed to in writing, Gurney hereby objects to any additional or different provisions contained in any purchase order or other communication from Purchaser as material alterations and notice of rejection of them is hereby given. Conflicts between the terms of this contract and any other written agreement between Purchaser and Gurney shall be resolved in favor of such other agreement. A modification of one part of this contract shall not act as a modification of any other part of this contract. Purchaser will be deemed to have assented to Gurney’s terms and conditions when: (a) Purchaser signs and delivers to Gurney an acknowledgment copy of any of Gurney’s quotations, order and acknowledgement or invoice forms; or (b) when Purchaser has received delivery of the whole or any part of the goods (the “Goods” or “Products”) or services (the “Services”) described on the documents pursuant to which this Contract has been made a part by reference, or (c) when Purchaser has otherwise assented to the terms and conditions hereof.
THIS CONTRACT AND THESE TERMS AND CONDITIONS SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN GURNEY AND PURCHASER, AND SHALL BE GOVERNED BY AND SHALL BE CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF MASSACHUSETTS, UNITED STATES OF AMERICA.
- Price. The prices of the Goods and Services are those specified on the face of this contract. Prices for deliveries are firm for the agreed period. The price includes only those chemicals in such amounts as reasonably required for the Products or Services provided by Gurney to Purchaser; additional chemicals required, but not limited to, as a result of the following: unresolved leaks, system repairs and/or leaks, excess cleaning requirements, or demand exceeding the amounts noted, will be provided at an additional charge. Purchaser agrees to repair all water systems as needed to minimize water loss and waste of chemical treatment, notify Gurney of any repairs resulting in any loss of treated recirculating systems water, and provide routine cleaning and maintenance of all water related systems covered by this contract.
- Taxes. Purchaser will pay any taxes or similar government charges imposed by any taxing authority with respect to this contract or the subject matter hereof. Any such items paid by Gurney will be reimbursed by Purchaser upon presentation of an invoice. If Purchaser is required to withhold tax from contract payments to Gurney, Purchaser will increase the amount of such payments so that the amount, net of withholding tax, is equal to the contract value.
- Terms of Payment. Payments are to be effected in United States of America currency. Payment shall be due thirty (30) days after the date of the invoice unless otherwise specified in writing. All late payments may be charged a service charge computed on a daily basis from the due date until paid in full at the rate of 1% per month or the maximum rate permitted by law, whichever is less.
- Credit Approval, Purchaser’s Insolvency. Purchaser’s orders are accepted subject to credit investigation and approval. In the event of any proceedings, voluntary or involuntary under any chapter of the U.S. Bankruptcy Code, state receivership law, or other form of insolvency proceeding or similar laws, the inability of the Purchaser to meet its debts as they become due, the appointment of an assignee for the benefit of the Purchaser’s creditors, the breach by the Purchaser of any term of this contract, or failure to pay any amounts due to Gurney, then Gurney shall be entitled, at its option, to cancel any unfilled part of this order, defer the provision of Goods or Services to Purchaser under any other contract with Purchaser, and stop Goods in transit, all without any liability.
- Delivery and Force Majeure. Reasonable delay in delivery of any Goods or Services by Gurney shall not relieve Purchaser of its obligations to accept remaining deliveries. Neither of the parties will be liable for failure to perform its obligations hereunder (excluding, however, obligations to pay money) caused by: strikes or other labor disturbances; inability to obtain equipment, parts, materials or suppliers; acts of governments or of agencies thereof; fires, storms, floods or other natural disasters; accidents, machinery breakdowns; failure of utilities; war; embargoes, civil disturbances; acts of God; or any cause not reasonably within the control of the affected party and not the result of its fault. In the event of product or supply shortages, Gurney reserves the right to allocate equitability, taking into account contractual commitments.
6. Warranties. Purchaser’s exclusive remedy for breach of warranty is limited to manufacturer’s warranty on Goods or Products and provision of Services in a workmanlike manner. These warranties and the purchaser remedies provided herein are exclusive and are given in lieu of all other express and implied warranties. No Gurney representative or any other party is authorized to make any modification or change to this warranty. Any implied warranties the purchaser may have, including the implied warranties of merchantability and fitness for a particular purpose that may purport to extend beyond or vary from the express warranties contained herein are denied and disclaimed. Gurney disclaims and Purchaser agrees that Gurney shall not be liable or responsible for any consequential, incidental, special and contingent damages whatsoever and however arising whether resulting from Gurney’s provision of Goods and Services to Purchaser. Any description of the products, whether in writing or made
orally by Gurney or Gurney’s agents, specifications, samples, literature, models, bulletins, drawings, diagrams, engineering sheets or similar materials used in connection with Purchaser’s order are for the sole purpose of identifying the products and shall not be construed as an express warranty. Any suggestions by Gurney or Gurney’s agents regarding use, application or suitability of the products shall not be construed as an express warranty unless confirmed to be such in writing by Gurney.
- Acceptance. The Goods shall be deemed accepted by the Purchaser unless notice of defect, shortages and variances is received within fifteen (15) days of shipping or installation thereof and the Goods are returned to Gurney within thirty (30) days of shipping or installation. Open chemical containers shall not be returned to Gurney under any circumstances.
- Cancellation of Orders. After Gurney’s acknowledgment of Order has been issued, an order may be modified or cancelled only upon written agreement by Gurney.
- Credit for Returned Goods. Goods may not be returned for credit unless Gurney has agreed to accept the return in writing. Where returns are accepted, a deduction of 25% will be made for re-handling. All costs for Goods must be paid by the Purchaser. In any event, only salable Goods of standard manufacture may be returned for credit.
- Patents, Trademarks and Copyrights. All documents, reports, specifications, drawings, field data and notes, laboratory test data, calculations, estimates, including documents prepared on electronic media prepared by Gurney under the terms of Gurney’s provision of Goods of Services to Purchaser are instruments of service in connection with this contract. Gurney shall retain an ownership and property interest in these instruments of service regardless of whether the project work is completed. Gurney shall not be liable, and Purchaser shall indemnify Gurney and hold Gurney harmless from and against any and all loss, liability, damage, claim or expense (including but not limited to Gurney’s reasonable attorneys’ fees and other costs of defense) incurred by Gurney (whether or not actually paid out of pocket) as a result of any claim of patent, trademark, copyright or trade secret infringements, or infringements of any other proprietary rights of third parties.
- EXCLUSION OF CONSEQUENTIAL DAMAGES AND DISCLAIMER OF OTHER LIABILITY. Gurney’s liability with respect to breaches of warranty shall be limited as provided in Section 6 hereof. With respect to breaches of warranty and any other breaches of this contract, Gurney’s liability shall in no event exceed the contract price. Gurney shall not be subject to and disclaims: (1) any other obligations or liabilities arising out of breach of contract or of warranty; (2) any obligations whatsoever arising from tort claims (including negligence and strict liability) or arising under other theories of law with respect to products sold or services rendered by Gurney, or any undertakings, acts or omissions relating thereto; and (3) all consequential incidental and contingent damages whatsoever including but not limited to property damage and mold. All the limitations and disclaimers contained in this paragraph and in the rest of this contract shall apply to claims of Purchaser’s customers or any third party asserted by Purchaser against Gurney for indemnity or contribution, as well as to direct claims of Purchaser against Gurney.
- Right of Entry. Purchaser agrees to and hereby furnishes Gurney with the right-of-entry on the land and into any structures, and represents and warrants that if the site is not owned by the Purchaser, that permission has been granted to make site reconnaissance and observations pursuant to the scope of services in the contract. Purchaser also agrees to prompt access to water system covered under this contract.
- Licenses and Permits. Purchaser shall be responsible for obtaining any permits necessary for Gurney to complete its obligations under this contract.
- Arbitration. Any differences of opinion arising between the parties out of or in connection with the purchase or its implementation shall be settled amicably. Should this, contrary to expectations, not be possible, then instead of any other legal procedure, they shall be finally decided upon, pursuant to the Rules of Commercial Mediations by the American Arbitration Association. Boston, Massachusetts shall be the place of arbitration.
- Indemnification; Indemnification for Hazardous Materials. Purchaser shall indemnify and hold harmless Gurney, its consultants, subcontractors, agents, officer, directors and employees from and against all claims, damages, losses, and expenses including defense costs and attorneys’ fees including those that result from the failure to detect or from the actual, alleged, or threatened discharge, dispersal, release or escape of any solid, liquid, gaseous or thermal matter, asbestos in any form, or contaminants including smoke, vapor, soot, fumes acids, alkalis, chemicals, waste, oil or other hazardous material. Purchaser shall be liable under this paragraph for claims, damages, losses, and expenses including defense costs and attorneys’ fees, unless such claims, damages and losses and expenses are caused by Gurney’s gross negligence or willful misconduct. In addition to and notwithstanding the foregoing, Purchaser agrees, to the fullest extent permitted by law, to indemnify and hold harmless Gurney, its consultants, subcontractors, agents, officer, directors and employees from and against all damage, liability or cost, including reasonable attorneys’ fees and defense costs, arising out of or in any way connected with the supply of Goods or provision of Services related to this contract.
- Term; Termination. The term of this contract shall be for any period that Gurney provides Goods or Services to Purchaser. This contract may be cancelled by either party upon 30 days written notice for the provision of Goods or Services, but in no event shall it be cancelled once Gurney begins performance of this contract, including the purchase of Goods under this contract or contract that this contract is incorporated by reference.