These terms and conditions apply to the purchase of products, goods and services (collectively “Services”) provided by Industrial Water Engineering and its subsidiaries and affiliates (“IWE”) by any Customer (“Customer”) with notice of these terms, however gained, including the access to and/or use of IWE’s website (“Website”). These terms constitute the entire agreement of the parties with respect to the subject matter hereof; they replace all previous correspondence, proposals, offers, usages, course of dealings and conventions including implied contracts or commitments. Accordingly, no additional or different terms or attempted exclusions or modifications (by way of purchase order, acceptance, confirmation, communication, course of performance or otherwise, all of which may hereafter be referred to jointly and severally as “Reply”) shall be effective against IWE in the absence of the express written consent of IWE by an authorized officer. Neither the submission of this document nor anything herein contained shall be construed to be an acceptance or confirmation of any prior or subsequent Reply; this document shall be a rejection and counteroffer with respect to any such Reply. Provisions below that apply only to certain types of Services only apply to the extent, if any, such provisions are applicable to the Services sold to Customer. The contract between IWE and Customer, if any, including these terms, shall be referred to collectively as the “Agreement.”
- Scope : The Services provided by IWE include and extend to only those systems and locations expressly identified and agreed upon between IWE and Customer (the “Agreement”) and for the limited purposes identified herein to the exclusion of all other systems, locations, services and purposes. Any changes to the systems, services or purposes must be made in writing. No additional or different terms or attempted exclusions or modifications (by way of purchase order, acceptance, confirmation, communication, course of performance or otherwise, all of which may hereafter be referred to jointly and severally as “Reply”) shall be effective against IWE in the absence of the express written consent of IWE by an authorized officer. Neither the submission of this document nor anything herein contained shall be construed to be an acceptance or confirmation of any prior or subsequent Reply
- Purpose : Unless otherwise specified, the Services provided by IWE are intended to promote system efficiency and longevity through the minimization of piping and equipment corrosion, scale formation, system wide microbial fouling and microbial induced corrosion. The sole purpose and scope of minimizing these factors is to aid in preservation of asset value, minimization of energy and water consumption, reduction of maintenance costs and to achieve optimal heat transfer. This Water Treatment Program excludes health-based considerations including those more appropriately addressed through an ASHRAE 188 Water Management Plan which can be provided upon request.
- Customer’s Obligations: Customer is responsible for the systems and attendant equipment identified in the Agreement (“SYSTEMS”). Customer shall: (1) provide IWE all reasonable access to the subject SYSTEMS to sample the water and to administer the water treatment programs; (2) notify IWE in advance of equipment inspections and openings; (3) report to IWE any changes in condition of customer’s operations or equipment that could affect the quality or quantity of water used in the subject SYSTEMS; (4) repair leaks as they occur; (5) comply with the water treatment program recommendations provided by IWE in service reports, visit reports, equipment inspection reports, and reviews; (6) purchase chemicals, test equipment, and reagents from IWE. (7) provide working chemical feed and controls equipment for the SYSTEMS. IWE will not be liable for any damages or conditions arising from the failure of chemical feed or control equipment; (8) periodically open equipment for inspection, cleaning, and removal of deposits not controlled by the water treatment program, including, but not limited to mud, silt, debris, and wood; (9) notify IWE immediately whenever there is any malfunctioning or tampering with the water treatment equipment; (10) provide sample points for collection of water to be tested including but not limited to condenser water, domestic water, softeners, RO equipment, steam boilers, condensate return systems, and closed loop systems; (11) clean condenser water system basins, fill, and distribution decks. OSHA requires condenser water system used for HVAC purposes to be cleaned twice per year; (12) authorize IWE to perform critical maintenance on a time and materials basis. Owner must approve maintenance prior to performance. Repair charges will include labor per hour plus parts, mileage, and other expenses. To the extent Customer’s SYSTEMS are not operated continuously, Customer is responsible for proper shutdown, lay-up, winterizing, cleaning, flushing, passivation and start-up consistent with the manufacturer's guidelines. Customer may request a quotation from IWE for these services through written notice.
- System Status: IWE will assess the SYSTEMS covered by this Agreement prior to the initiation of services. The parties acknowledge that this assessment may provide limited information as the SYSTEM internals may be obstructed from view and latent defects may be undetectable. Customer will provide IWE with accurate and complete information about the subject SYSTEMS including but not limited to water flow, identification of all dead legs or other system irregularities that impede complete water flow, unusual issues, past microbiological issues, end point uses, current start up and shut down procedures, and other similar items. Customer acknowledges that incomplete, inaccurate, or incorrect information may reduce plan effectiveness. Customer acknowledges and intends that IWE relies on the information provided by Customer. IWE is not responsible for consequences arising from conditions pre-existing this Agreement or issues arising from incomplete, inaccurate, or incorrect information provided by the Customer or for conditions occurring after the term of this Agreement has expired.
- Legionella Testing: Upon express written request, Customer may engage IWE to provide to Legionella testing related services. In those instances, IWE will (1) obtain the agreed upon number of environmental samples from the SYSTEMS in accordance with the methods prescribed by a CDC Elite approved testing laboratory (including potable water, non-potable water and/or swab samples as appropriate) (2) store and transport those samples to any CDC Elite approved testing laboratory selected by IWE to perform the necessary testing for each environmental sample; and (3) provide the reported results to Customer. In reporting or transmitting the test results contemplated by this Agreement, IWE does not warrant that the reported levels of Legionella pneumophila within any given environmental sample are safe or that they are reflective of the levels of Legionella pneumophila within the Customer's water SYSTEM(S) at any location or time other than the moment and location at which the sample was obtained. Customer is responsible for implementing the appropriate response to any test results including instances of Legionella positivity. IWE shall not be liable for any claims or causes of action arising from the method, sampling location, means or manner of Legionella testing contemplated by this Agreement including the method of sampling prescribed or the sampling locations. Customer acknowledges that the frequency at which samples are to be taken is subject to change and agrees to pay all corresponding costs. Customer shall identify the specific sampling locations in the SYSTEMS at which IWE is to obtain samples from Customer's water system(s) before any sampling begins. Customer shall provide IWE with reasonable access to its premises and the Customer-identified sampling locations to allow IWE’s employees to perform the sample collection. Customer shall assist in removing all fixtures and equipment as necessary to allow sampling prior to IWE’s scheduled arrival and/or per IWE’s instructions.
- Water Management Plans: Upon express written request, Customer may engage IWE to develop or administer a Water Management Plan (WMP) for minimizing the risk of Legionellosis based on the principles of water management as outlined in ANSI/ASHRAE 188. This standard is intended for use by owners and managers of human-occupied buildings, excluding single-family residential buildings. This standard is also intended for those involved in the design, construction, installation, commissioning, operation, maintenance, and service of centralized building water systems and components. WMP’s require a site survey of the SYSTEM(S). Customer will provide accurate and complete information about its SYSTEM(S) including but not limited to any conditions that may impede complete water flow, past microbiological issues, and related items. Incomplete or inaccurate information may reduce WMP effectiveness. IWE is not responsible for damages arising from conditions pre-existing its retention for the provision of these SERVICES, issues arising from incomplete or inaccurate information or for events occurring after the term of this Agreement has expired. WMPs and the corresponding third-party WMP support vendor subscriptions (such as HC INFO, Special Pathogens) must be renewed annually to ensure plan effectiveness. IWE shall be held harmless for any damages arising from or relating to non-renewal. Administration of a WMP by those other than IWE may compromise effectiveness and IWE shall be held harmless for any damages arising from or relating thereto. Customer shall hold IWE harmless from any and all claims for damages arising from or relating to the Customer’s alteration or modification of the WMP, including but not limited to modifications to action levels for Legionella positivity. While WMPs may assist in the minimization of risk, no plan can be represented to completely prevent or control Legionella to a safe level, control all risk factors for infection or prevent human illness. IWE disclaims any liabilities relating to waterborne pathogens or any related health risks.
Limitations of Liability: IWE is not responsible for damages due to Customer's failure to properly clean, operate or maintain the systems or attendant equipment. Customer acknowledges that failure to follow IWE’s recommendations may reduce the effectiveness of the Services provided. IWE makes no representation or warranty regarding its Services in the event IWE’s recommendations are not followed. IWE shall be held harmless for any damages or claims arising from or relating in any manner to the failure to follow IWE’s recommendations. Customer will defend, indemnify, and hold harmless IWE, its officers, directors, employees, managers, and their successors against all actions, suits, claims, losses, liabilities and demands whatsoever, including costs, expenses, and attorneys' fees, rising from or relating to the Services provided by IWE. Including but not limited to claims based on negligence. These protections will survive expiration or termination of the Agreement. Each party will promptly notify the other of any claim asserted against it for which such indemnification is sought. In no event will the indemnifying party, without the reasonable consent of the indemnified party, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, results in any ongoing material liability to, or materially prejudices the indemnified party.
Legionella Science: Scientific evidence is either lacking or inconclusive in certain aspects of Legionella. ASHRAE Standard 188 remains under continuous maintenance. The safe level for Legionella bacteria is unknown and the scientific consensus is that complete prevention of Legionella bacteria is neither realistic nor practical. Customer agrees and understands that Legionella, Pseudomonas, and other bacteria present inherent risks in Customer’s water-based systems. Due to individual host susceptibility, the ubiquitous nature of Legionella, and the lack of a known safe level, incidences of disease or injury may occur despite the implementation of Legionella testing or minimization efforts. The Services are not intended, represented or warranted to prevent or control Legionella bacteria. While certain measures may assist in the minimization of risk, no measure can be represented to completely prevent Legionella bacteria, control Legionella bacteria to a safe level or prevent human illness. IWE disclaims any liabilities relating to waterborne pathogens or any related health risks. Customer agrees to indemnify, defend and hold IWE harmless from any claim or cause of action, asserted by any person or entity, relating to Legionella bacteria or other waterborne pathogen, including but not limited to claims based on negligence.
- Other Services: IWE provides other water treatment products, services, and equipment, such as passivation, layups during non-operating periods, start-up, hyperchlorination, cleaning and disinfection and other services. These Services are not included but are available upon request.
Payment Terms: All payments are due within thirty (30) days of receipt of IWE’s invoices. If requesting credit, the terms are net 30 days. A 1½% per month finance charge will be assessed on all past due invoices. IWE reserves the right to change the status to C.O.D. If an attorney is needed to assist in debt collection attorney’s fees will be paid by Owner. Any third-party fees or expenses will be billed to the customer.
Termination: Either party to the Agreement may terminate the same at any time by giving notice in writing to the other party, in which case this agreement shall terminate 30 days after the service of written notice at the above referenced address, or other address specified by the parties. Customer will be responsible for payment of all invoices and for products/equipment shipped and services rendered prior to termination. Customer will, at the conclusion of services, return any loaned equipment or remaining chemical inventory to IWE in good condition, given normal wear and tear, within thirty (30) days after termination. Otherwise, IWE will invoice Customer for the equipment or chemical products.
Force Majeure: Except with respect to Customer’s obligation to pay invoices when due, if IWE or Customer is prevented from or delayed in performing by a force majeure event, it shall not be liable or responsible for its failure to timely perform but shall perform as soon as possible after the force majeure event ceases. References to force majeure shall refer to circumstances that are beyond a party’s control and that affect production or transportation, including acts of God, acts of war, acts of government, terrorism, riots, labor strikes, labor lockouts, interruption in telecommunication transmission or product transportation, materials or supply chain shortages or delays or sudden severe increases in materials prices or other costs, accident, fire, water damage, flood, earthquake, windstorm, other natural disasters and catastrophes, and compliance by a party with any order, action, direction or request of any governmental officer, department, agency, authority, or committee thereof. This provision is intended to be interpreted to expand rather than limit the application of the Uniform Commercial Code (“UCC”).
Disputes: This Agreement and any dispute arising from or relating to the Services provided by IWE shall be governed by the laws of New Mexico. In the event of a dispute relating to the Services or Agreement, the parties agree to attempt to resolve the dispute through good faith negotiation within forty-five (45) days of receipt of notice of an issue. If the dispute is not resolved through negotiation, the parties agree to mediate with a mutually agreeable third party prior to initiating a lawsuit. Each party agrees that the courts of Bernalillo County, New Mexico shall have personal jurisdiction over the parties and subject matter jurisdiction over any issue or dispute arising out of or related to the Services, and that venue shall be proper in Bernalillo County, New Mexico.
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