Standard Terms and Conditions of Sale
Standard Terms and Conditions of Sale
- Offer of Sale
The goods and/or services (referred to as “Products”) offered for sale by Balboa Water Group, LLC, as well as its affiliates Balboa Instruments, HydroAir International and GG Industries (collectively “Balboa” or “Seller”) are offered for sale based on these terms and conditions. Buyer agrees to and accepts these terms and conditions and agrees that, unless modified by separate negotiated agreement as provided below, these terms and conditions, together with the item, quantity, price, and similar terms as set out in Seller’s written quotation, order acknowledgment, and/or invoice, constitute the entire agreement between Seller and Buyer (“Agreement”), superseding all other communications and documentation. Seller hereby expressly rejects any different or additional terms or provisions, preprinted or otherwise, contained or referenced in any purchase order or other documentation furnished by Buyer, whether before or after delivery of Products, even if receipt thereof is acknowledged by signature or otherwise, and Seller shall not be required to separately object thereto.
- Orders and Payments
a. Unless otherwise specifically agreed by Seller in a separate written agreement or quotation, all prices are subject to change at any time without notice. Prices exclude, and Buyer is responsible for payment of, any sales, use, excise, value added, goods and services, customs, documentary, import/export, or similar tax, tariff, fee, or duty now or later imposed upon the Production, storage, sale, transportation, or use of the Products, all of which, if paid or provided by Seller, shall be invoiced to and paid by Buyer in addition to the price unless, in the case of taxes, Buyer provides an exemption certificate acceptable to the applicable taxing authority. Buyer acknowledges that the purchase, where delivery is outside the United States, is for foreign use and not intended to be resold in the United States. Prices are based on the currency exchange rates applicable at the time the offer was made and may therefore be amended by Seller at any time to accommodate changes in the price/currency ratio. Prices quoted on custom products are open for the time stated in the quote or a maximum of thirty (30) days from the quotation date and are based on estimated quantities, labor and material requirements and other factors, and are subject to adjustment by Seller from time to time.
b. Orders must be presented in writing or via electronic means acceptable to Seller and shall be considered accepted only by written or electronic order acknowledgment or shipment of the Products ordered or performance of the Services. Seller reserves the right, at its option and without liability, to refuse any order, in whole or in part, or to specify an alternate delivery schedule if orders from all sources exceed its inventory or ability to deliver. Seller reserves the right, at its discretion, to change the design, specifications, manufacturing, processes, testing, packaging, raw materials, or other procedures of its Products. Where orders are placed, acknowledged, and/or invoiced by electronic transmission, the data transmitted shall be deemed “in writing” and “signed;” and any printout of electronic transmissions maintained in the ordinary course of business shall be considered an “original” and admissible as between the parties to the same extent and under the same conditions as other business records maintained in documentary form. Seller shall be entitled to assume that persons placing orders on behalf of Buyer (electronically or otherwise) are authorized to and do so to accept the terms and conditions herein.
c. For Customers without approved payment terms, all orders require payment prior to shipment by COD, letter of credit, or other payment method approved by Seller, unless otherwise specified in Seller’s written quotation or acknowledgement. Seller’s standard payment terms are Net 30, subject to credit approval. Payment terms, if any, require Seller’s written approval and are calculated from date of invoice. If Buyer is delinquent in any payment due, Seller in its discretion may exercise any and all available remedies hereunder or at law, including set off, and may institute credit hold procedures on all open orders. Future orders shall not be confirmed until Buyer’s account is brought current, including any outstanding interest charges. A service charge of 1.5% per month may be charged on all past due balances. Seller reserves a purchase money security interest in the Products and any accounts receivable, general intangibles, or proceeds arising from the sale, license, or disposition of the Products, until the entire amount due Seller under this Agreement has been paid in full. If Buyer defaults and this account is turned over to an agency and/or attorney for collection, Buyer shall pay all reasonable attorney fees and/or the cost of collection.
- Delivery and Risk of Loss
Delivery is ex works from Seller’s facility. Risk of loss for the products passes to the Buyer at the time of delivery by Seller to the freight carrier at the point of shipment. The shipment will be sent at the risk and the expense of the Buyer and Seller has no liability and shall not accept responsibility for loss or damage occurring in transit. Unless Seller has received specific instructions in advance, Seller shall be entitled to select the means of transport and delivery route. The Buyer assumes the responsibility to obtain adequate insurance on each shipment.
- Delay in Performance
Delivery dates furnished by Seller are estimated delivery dates. Seller shall not be in default of any agreement nor be liable for any expense, loss or damage occasioned by a delay in performance due to causes beyond its control, including but not limited to labor disputes, floods, fires, weather events, transportation delays, pandemics, inability to obtain materials or manufacturing equipment breakdown. In the event of such delay, the price and/or other provisions of the parties’ agreement may be adjusted to reflect the impact of any delay.
- Product Limited Warranty and Limitation of Liability
Seller warrants that the products will be free from defects in workmanship and material under normal use and conditions for a specified length of time as outlined in its Limited Warranty found at: www.balboawater.com/Warranty. Seller reserves the sole authority to make any type of warranty or representation concerning our products. Seller will not be responsible for any warranty or representation made by any outside source, including dealers, distributors, retailers, contractors or OEMs.
The Seller’s Limited Warranty is accepted in its entirety by the Buyer as the sole warranty relating to the products and is incorporated herein and made a part of these terms and conditions by this reference. Improper selection, improper use, or use by anyone other than qualified users having appropriate technical and mechanical expertise may result in damage to property, bodily injury and/or death. Buyer is advised to consult Product information on www.balboawater.com for specifications, technical features warnings and instructions. Seller’s sole warranty liability shall be, at Seller’s option, the modification, adjustment, repair or replacement of any Products, re-perform the services or refund the purchase price. Seller may elect to obsolete Products or components without a continuing obligation to stock or supply.
b. TO THE FULL EXTENT ALLOWED BY LAW, THE FOREGOING LIMITED WARRANTIES AND REMEDIES ARE EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS, OR CONDITIONS, WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, AND NON-INFRINGEMENT, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
c. Seller cannot and does not accept responsibility for or warrant any of its Products that have been subjected to improper installation, improper application, negligence, tampering, misuse, abuse, damage, or which have been repaired, altered, or modified outside of the Seller factory.
d. Buyer shall defend and hold harmless Seller from and against, any losses, liabilities, damages or injuries arising out of (1) the handling, storage, installation, operation, service, or use of any Product in violation of these Terms, (2) any non-Seller or custom design, manufacture, or installation of Products pursuant to Buyer’s requirements, specifications or designs.
e. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR OTHER INDIRECT DAMAGES OR LOSSES, INCLUDING WITHOUT LIMITATION LOSS OF DATA, HOWEVER CAUSED, WHETHER OR NOT FORESEEABLE, AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND SELLER’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE FOR ANY AND ALL CAUSES SHALL BE LIMITED TO THE PURCHASE PRICE PAID OR PAYABLE FOR THE APPLICABLE PURCHASE ORDER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FOR EUROPEAN CUSTOMERS, THE FOREGOING SHALL BE MODIFIED SOLELY AS REQUIRED UNDER THE PRODUCT LIABILITY ACT, IT BEING AGREED THAT CLAIMS OVER AND ABOVE THOSE UNDER THE PRODUCT LIABILITY ACT SHALL NOT BE MADE BY BUYER AGAINST SELLER, AS MANUFACTURER, UNDER ANY THEORY OF LIABILITY, INCLUDING BY MEANS OF INDEMNIFICATION OBLIGATIONS.
f. Buyer acknowledges that these limitations of liability are a material part of the bargain between the parties and are reflected in Product pricing, which would be higher without these limitations. The Buyer shall obtain and carry in full force and effect at all times commercial, general liability insurance which shall protect the Buyer and the indemnitees from all such claims. Such insurance shall be written by a reputable insurance Seller and shall be endorsed to include product liability coverage and shall contain limits not less than those necessary to adequate insure for all such potential claims. The Buyer shall, upon request, provide the Seller with certificates of insurance from the insurance carrier evidencing the foregoing insurance coverage.
- Intellectual Property and Proprietary Information
a," "Balboa Water Group LLC," “Balboa Instruments,” “HydroAir,” and “GG Industries”, are trademarks of Balboa Water Group LLC. Other Product or Seller names mentioned on this website may be trademarks of their respective owners. Some of Balboa’s Products are protected by one or more U.S. or foreign patents. Patent numbers are listed on the Product web page wherever applicable.
b. Buyer acknowledges that Seller’s Products are based upon and embody various confidential and/or proprietary technology, processes, methods, information, and trade secrets of Seller and its suppliers and licensors. Seller and its suppliers or licensors (as applicable) shall exclusively own all inventions, technology, know-how, trade secrets, and other proprietary information of any kind used or embodied in the Products or Services, documentation, drawings, designs, specifications, software, and other items furnished by Seller, all intellectual property rights with respect thereto, and all reproductions or derivatives thereof in any form (“Proprietary Information”). Buyer shall neither acquire nor claim any right, title, or interest in, and shall exercise reasonable care to maintain the confidentiality of, Seller’s Proprietary Information and shall use the same solely as required for its authorized use of Seller’s Products or Services as supplied hereunder. Buyer may not directly or indirectly (1) copy, adapt, develop, disassemble, reverse engineer, recast, compile, decompile, translate, or create derivative works from any Products or Services, instructions, manuals, schematics, or other items provided by or on behalf of Seller, or permit any third party to do so, (2) remove, alter, or obscure any copyright, trademark, patent, logo, government restricted rights, or other notices or legends from items provided by Seller, or (3) disclose or use Seller’s Proprietary Information for commercial purposes or in a manner detrimental to Seller. Disclosures of Proprietary Information may be made only to Buyer’s Representatives having a specific need to know and a written obligation to protect such information no less restrictive than the restrictions herein, and Buyer shall be responsible for any breach by its Representatives. It is agreed that any breach of this Section may cause Seller irreparable harm for which recovery of damages would be inadequate, and that immediate injunctive or other equitable relief is appropriate and available to Seller to prevent any violation, threatened or actual, in addition to other remedies and without proof of actual damage.
"The Buyer is encouraged, immediately upon reception of the items purchased, to carry out an inspection of the products received with good business practice. The Buyer shall have no right to inspect any products prior to delivery, and any inspection of the products by the Buyer shall be made within eight (8) days after their arrival at the Buyer's receiving point. Failure to make inspection and provide the Seller with written notice specifying any claimed basis for rejection within that time will constitute deemed acceptance of the products and, if the Buyer has established credit terms, a final waiver of the right to make any inspection prior to full payment for all of the products.
- Changes to Design or Product Offering
The Seller reserves the right, prior to delivery and without notifying the Buyer in advance, to carry out such alterations to the design, construction, etc. of its products as the Seller may deem necessary in its discretion. Such alterations shall only entitle the Buyer to cancel an unfulfilled purchase order insofar as the Buyer proves that the purchase was conditional upon a specific design, construction or similar requirement. Changes made and any resultant cancellation of the purchase order does not entitle the Buyer to any form of compensation or damages, or to a proportional discount in the purchase price. The Seller reserves the right to discontinue products or product components at any time for any or no reason.
Products which are normally stocked by the Seller for sale (specifically excluding any custom products or products using or integrating Buyer’s equipment) ordered in error may be returned, at the Buyer’s expense, within thirty (30) days of delivery for credit, less an amount equal to 25% of the original purchase price, representing a restocking charge. No product is to be returned to the Seller by the Buyer without the prior written consent, acceptance and authorization of the Seller, and all returns require a return authorization number which must be included on all shipping paperwork. The Seller shall have no liability for products damaged in shipment. To apply for permission to return products, the Buyer must first complete the ‘Return Goods’ form, which can be found on www.balboawater.com and then contact the seller for further instructions.
- Product Information Advice Liability
Absent the existence of a specific written agreement to the contrary any product information, technical advice or other informational assistance furnished by the Seller relating in any manner to its products shall be furnished without additional charge and will be given and accepted at the Buyer’s sole risk. The Seller has no obligation to provide any information or assistance prior to receipt of the full purchase price from the Buyer for the products. The Seller will have no liability for damages, loss or expense arising out of the provision of information or assistance or any act or omission, including negligence, by the Seller or its agents. Notwithstanding the foregoing, in the limited circumstance where the Seller has supplied separate, non-standard written advice to the Buyer in the form of the preparation of specific, customized written calculations or in the form of a specific, customized written statement concerning the suitability of the items sold for a specified purpose issued to a Buyer who cannot reasonably be considered to possess the requisite professional knowledge of the area to be able to evaluate the suitability of the items without assistance, then the Seller shall accept limited liability only if the advice provided can be considered indefensible in relation to the knowledge the Seller possessed regarding the object of the advice at the time same was given. The Seller shall accept no liability for statements if it has been made clear Page 6 of 7 that such statements are based on an approximate evaluation or estimation. Should errors be discovered in the written advice supplied by the Seller in connection with the delivery from the Seller, the Buyer shall, without undue delay and immediately after the Buyer has or should have become aware of the presence of the errors, inform the Seller of same. Should this provision be ignored or waived, the Seller shall only pay compensation for such losses as may have arisen as a direct consequence of the incorrect advice from the Seller at the time at which the Buyer should have informed the Seller. In no event shall the liability of the Seller for losses incurred as a result of incorrect information or advice exceed the obligation to repair or replace the product in question with like product, and in no event shall the Seller be liable to Buyer for any amounts in excess of the purchase price paid for the individual product which is the subject of the cause of action. The liability of the Seller for losses incurred as a result of errors in information or advice shall lapse no later than one (1) year after the items to which the information or advice is linked have been delivered to the Buyer.
- Minimum Order
No orders will be accepted under $250 USD.
- Force Majeure
The Seller shall not be liable for any delay in performance, shipment or delivery or inability to provide the Buyer with any products due to causes beyond its reasonable control, including, without limitation, strikes, lock-outs, riots, wars, terrorism, mobilization, impoundment currency restrictions, obstacles to transport, restrictions on fuel or materials, weather, fire, flood, earthquake, other Acts of God governmental order or regulation, missing or incomplete deliveries from subcontractors, loss of electricity, and acts of the Buyer or any other such causes beyond the control of the Seller (collectively #Force Majeure Events#). Performance, shipment and/or delivery shall be deemed to be suspended for so long as performance of the same is delayed due to causes beyond the Seller’s reasonable control, and the Buyer agrees to accept deliveries whenever such causes have been remedied in accordance with the terms of the #Delivery times# section above.
The Buyer shall not make or authorize any news release advertisement or other disclosure which directly or indirectly identifies the Seller as the source of products without the prior written consent of the Seller in each instance.
- Compliance with Law and Governing Law
a. Products have been manufactured in compliance with applicable laws of the country where Products are manufactured. Compliance with local laws related to the operation or use of Products is Buyer’s responsibility. Products may not be exported or re-exported to any country, person or entity on any list published by the U.S. government of economic or trade sanctioned countries or Specially Designated Nationals, Narcotics Traffickers or Terrorist(s).
b. Except where expressly prohibited by statutory or constitutional restrictions governing choice of law by a political subdivision, agency, or instrumentality, these Terms, all transactions to which they may apply, and any disputes arising out of Products supplied or Services performed hereunder shall be governed by the laws of the State of Delaware and the United States of America, excluding any conflict of law provisions. Buyer and Seller consent to the mandatory jurisdiction of the Federal or State courts of Delaware or Seller’s principal place of business.
c. By issuing a purchase order to the Seller, the Buyer accepts these terms and conditions as applicable therein. Any blanket replacement by the Buyer's terms and conditions is hereby rejected, and in the event of any inconsistency between the terms and conditions hereof and the purchase order, the terms and conditions hereof shall prevail in all instances.
d. In the event a judicial proceeding is necessary, the sole forum for resolving disputes arising under or relating in any manner to these terms and conditions and any purchase order are the state or federal district courts located in the County of Orange, State of California, U.S.A. and all related appellate courts and the parties hereby consent to the jurisdiction of such courts, and that venue shall be in County of Orange, State of California, U.S.A. Each party hereto waives any right to challenge or move the foregoing designated jurisdictions and venue on grounds of inconvenient forum. Service of process may be made in any manner provided for by applicable law. These terms and conditions are binding upon and inure to the benefit of the parties hereto and their respective heirs, executors’ successors and permitted assigns, as the case may be. Except with the prior written approval of the Seller, the Buyer may not assign a Buyer order or the terms and conditions applicable to it. If any provision contained herein is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision and all other provisions shall remain in full force and effect.
Effective February 01, 2021