Boiler Specialists Inc.’s
Terms and Conditions of Sale
June 1, 2025 Version
Boiler Specialists Inc.’s (“Seller”) Terms and Conditions of Sale apply to all purchases of equipment and/or services by Buyer from Seller and all Proposals issued by Seller shall be subject only to these Terms and Conditions unless Seller expressly agrees otherwise in writing.
1. Contract Formation, Offer, Acceptance, Exclusive Terms
A. Each Proposal submitted to Buyer, together with these Terms and Conditions, is an offer by Seller to the Buyer identified on the Proposal to enter into an agreement for the sale of goods and/or services. Seller’s offer expressly limits acceptance to the terms of Seller’s offer.
B. Buyer may accept Seller’s Proposal and be bound by Seller’s Terms and Conditions by signing the Proposal or by submitting to Seller a Purchase Order, Order, Sales Order, or other document showing agreement to the Proposal together with these Terms and Conditions. In any case, the sale of goods and/or the provision of services by Seller to Buyer shall be governed exclusively by these Terms and Conditions.
C. In the event that the Buyer’s Purchase Order, Order or other written response to the Seller’s Proposal is held to be an offer by the Buyer, that offer is expressly rejected and is replaced by the Seller’s Proposal together with these Terms and Conditions.
D. The Parties understand and agree that the acceptance of the Proposal is limited to the Terms set forth in the Proposal and in these Terms and Conditions. No purported acceptance of any Purchase Order, Order, Sales Order, Quotation or other document received from Buyer, on terms which modify, supersede, supplement or in any way alter the Proposal and/or these Terms and Conditions shall be binding on Seller and such terms shall be deemed rejected and replaced by the Proposal and these Terms and Conditions unless Buyer’s proffered terms are accepted by Seller in a written instrument signed by an authorized officer of the Seller. Acceptance is limited to these Terms and Conditions and to the Terms contained in the Proposal notwithstanding the delivery of an Acknowledgment by Seller or Buyer’s acceptance of or payment for the goods and services that are the subject of the Proposal.
E. If Seller’s Proposal and/or its Terms and Conditions have been issued by Seller in response to an offer made by Buyer, and if any term of the Proposal or the Terms and Conditions are additional to or different from Buyer’s terms and conditions, then the issuance of Seller’s Proposal and/or its Terms and Conditions shall constitute an acceptance of Buyer’s offer, subject to the express condition precedent that Buyer assent to such additional or different terms and acknowledge that Seller’s Proposal and its Terms and Conditions constitute the entire agreement between Seller and Buyer with respect to the subject matter of Buyer’s offer. Buyer shall be deemed to have acknowledged and assented to Seller’s Proposal and to its Terms and Conditions unless Buyer notifies Seller in writing within ten (10) days after placing an order, which is subject to Seller’s Proposal and its Terms and Conditions. Buyer agrees that no contract shall exist between Buyer and Seller except as expressly set forth herein.
F. In the event of a conflict between the Buyer’s Purchase Order, Order or any prior or contemporaneous document exchanged between Buyer and Seller, the Parties understand and agree that the Seller’s Proposal together with these Terms and Conditions govern the transaction.
2. Definitions. As used in this Agreement, the following terms shall have definitions as follows:
A. “Agreement” shall refer to the mutual promises of the Seller to sell, and the Buyer to buy, certain goods and/or services as described in the Proposal, in these Terms and Conditions and in a Change Order, if any.
B. “Confidential Information” means, and as more fully defined in Section 20 hereof, any patterns, markers, specifications, know-how, drawings, designs, plans, cost or pricing information, buying habits, customer lists, trade secrets, trade dress, concepts or ideas related to the business of either Party to the Agreement, and any information or know-how acquired from such Party in connection with this Agreement or the production or delivery of the goods and/or services, including information related to such Party’s products, processes or services, research, inventions, marketing, manufacture, purchasing, accounting, engineering, merchandising, selling, customer agreements, samples, prototypes and/or any part thereof.
C. “Delivery Date” means the date that the Goods are shipped from Seller’s place of business to Buyer’s indicated destination.
D. “Good” or “Goods” mean the equipment and/or services that are the subject of the Proposal.
E. “Party” means Seller or Buyer and “Parties” means both the Seller and the Buyer.
3. Change Requests and Orders. If the Parties determine that changes to the Proposal and/or to the Goods are necessary and/or desirable, then such changes shall be evidenced by a Change Order. Such Change Order shall amend the Proposal appropriately to incorporate the agreed upon change and acknowledge the effect, if any, of the change on the Purchase Price, Delivery Date, and warranty provisions of this Agreement. All Change Orders shall be signed by an authorized representative from both Parties. If any Change Order is not signed by an authorized representative from both Parties, then it shall be void and shall have no effect on the terms of the Agreement. An exchange of emails between authorized representatives of both Parties explicitly approving a Change Order shall be accepted as establishing the Parties’ signed approval as required in this Paragraph.
4. Proprietary Specifications. To the extent that Seller has provided information, research, designs, specifications, know-how, concepts or ideas derived from, or formulated in connection with, its performance of the Agreement, Buyer acknowledges that such are the property of Seller and that Seller is entitled to patent, use or sell the same to any third-party. Buyer also acknowledges that it shall not patent, use or sell any other product to any third-party that incorporates specifications and/or designs developed by Seller.
5. Purchase Price/Remedy.
A. The Purchase Price of the Goods shall be confirmed in Seller’s Proposal delivered to Buyer as referenced in Section 1. hereof. The Purchase Price is inclusive of all Goods specified in the Proposal.
B. Unless specifically set forth in the Proposal, payment shall be as follows:
a. Payment terms are net 30 days from date of invoice with payment made in immediately available funds through electronic transfer (Automatic Clearing House) unless otherwise expressly agreed to in writing by Seller’s authorized representative. Seller may also accept check, credit card, or wire payment. If by credit card, Seller reserves the right to decline credit card payment or require a credit card processing and administration fee up to 4.0% of the total value of the deliverable. Seller may, at its discretion, decline to accept cash payments.
b. Unless agreed to otherwise in writing, the Seller requires a signed Proposal and/or proof of payment means before providing services or procuring products (i.e., Goods) to ship to Buyer. Seller may, at its discretion, require prepayment for Goods.
c. In the event Buyer fails to make any of the required payments or other breach, in addition to other remedies specified herein and as provided by law, Seller may: (i) delay or stop the provision of Goods, including work in progress, (ii) charge an administrative fee on delinquent amounts for non-payment at the lesser of 1.5% per month for each full or partial month or the maximum legal rate available under the governing law and (iii) recover all costs of collection, including attorneys’ fees. Buyer may not set off invoiced amounts against sums that are due from Seller. Seller’s extension of credit is subject to Buyer maintaining an acceptable credit standing.
C. Buyer acknowledges and agrees that Seller shall not be liable for any incidental, consequential, or special damages of any kind incurred by Buyer (including loss of profits) due to Seller’s enforcement of its rights under this Section 5.
6. Taxes. Prices do not include any applicable sales, use, excise, value added, gross receipts, or similar federal, state, local or other governmental taxes imposed on Seller in connection with the sale of Goods and/or the provision of services under the Agreement. The amount of any such tax which Seller may be required to pay or collect will be on Buyer’s account and will be invoiced to Buyer unless Buyer has furnished Seller with an appropriate tax exemption certificate acceptable to the taxing authorities.
7. Shipping.
A. All Proposals are sold F.O.B. Seller’s place of shipment unless Ex-Works or FCA is stated in the Proposal. Time is not of the essence with respect to Delivery Dates and Delivery Dates are subject to reasonable adjustment. The acceptance of a shipment by Buyer shall constitute Buyer’s acknowledgment of proper delivery.
B. Seller charges for shipping and handling on all Proposals. Unless otherwise specified in writing authorized by Seller, all charges, expenses, or taxes associated with the delivery, including, but not limited to shipping and handling, charges for special delivery services, and for refused deliveries shall be paid by the Buyer. Freight charges for refused or returned shipments will be charged to Buyer.
C. Special delivery services are available for an extra charge.
D. Any permits required for installation, operation, etc., are the responsibility of the Buyer.
8. Risk of Loss and Transfer of Title. The risk of loss passes to Buyer upon shipment of Goods as specified herein. Title to Goods shall pass to Buyer upon receipt of valid final payment as specified in the Proposal. Buyer grants Seller a security interest in the Goods until paid in full, subject to applicable law.
9. Equipment Acceptance.
A. Prior to shipment, the Buyer may request a pre-shipment demonstration of the Goods at Seller’s facility and may have a representative present during the demonstration. It is understood that any non-conformity in the performance of the Goods identified as a result of the demonstration will be corrected by Seller prior to shipment of the Goods.
B. Upon completion of the pre-shipment demonstration, the Buyer shall complete an “Acceptance Sign-Off Sheet.” In the Acceptance Sign-Off Sheet the Buyer’s representative shall: (1) indicate that the demonstration did not reveal any non-conformity and that the Goods performed in accordance with the Specifications, or (2) identify with specificity the non-conformities.
C. Upon signing the Acceptance Sign-Off Sheet, the Buyer’s representative shall direct the Seller, subject to its curing the defects identified by Buyer on the Acceptance Sign-Off Sheet, to promptly prepare the Goods for shipment. The execution of the Acceptance Sign-Off Sheet shall constitute acceptance as that term is defined in Ohio R.C. 1302 et seq.
D. In the event that there is no pre-shipment demonstration, and the Goods are provided to Buyer under the Proposal and these Terms and Conditions, then Buyer must notify Seller of any non-conformity with the Goods within a reasonable time after Buyer discovers or should have discovered the non-conformity, but in no event, longer than 30 days after delivery.
E. After the expiration of the 30-day period referenced in Section 9.D. hereof, and absent the provision of a notice of a non-conformity, the Goods shall be deemed accepted as that term is defined in Ohio R.C. 1302(C).
F. Acceptance under Section 9.D. or 9.E. does not nullify or affect in anyway any manufacturer warranty applicable to the Goods.
10. Manufacturer Warranty and Seller’s Disclaimers. Unless specifically stated otherwise in the Proposal:
A. Buyer acknowledges and agrees that Goods are warranted to be free from defects and/or non-conformities only to the extent that the manufacturer of the Goods has extended such warranties or applicable implied warranties to the purchase of the Goods by Buyer.
B. Buyer acknowledges and agrees that Seller has made:
(1) NO WARRANTY OR PROMISE WITH RESPECT TO THE GOODS, INCLUDING ITS USE, REPAIR OR PERFORMANCE OF THE GOODS.
(2) NO EXPRESS OR IMPLIED WARRANTY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY AGAINST DEFECTS IN DESIGN, MATERIALS AND WORKMANSHIP OR INFRINGEMENT.
(3) NO WARRANTY, OR PROMISE THAT THE GOODS CONFORM TO ANY SAMPLES OR MODELS.
(4) NO WARRANTY THAT MAY BE CONSTRUED AS ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.
C. BUYER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE, STORAGE OR USE OF THE GOODS, INCLUDING, BUT NOT LIMITED TO: (A) DAMAGES FOR LOSS OF USE, INCOME OR PROFIT; (B) LOSSES SUSTAINED AS A RESULT OF INJURY (INCLUDING DEATH) TO ANY PERSONS; AND/OR (C) DAMAGES TO PROPERTY, OTHER THAN THE GOOD ITSELF.
D. Seller EXPRESSLY DISCLAIMS any defect, failure, deficiency or non-conformity with the provision of Goods that is: (a) not reported to Seller within 30 days after Delivery; (b) due to any modification, abuse, misuse, improper storage, unauthorized repair or maintenance of the Goods, (c) due to any abnormal condition of temperature, humidity, dirt or improper operation of the Goods; (d) due to the application or operation of the Goods, either intentional or otherwise, in an improper manner; (e) due to normal wear and tear of the Goods or any part(s) thereof, (f) due to combining the Good with a product, service or software not provided by Seller or (g) the result of Buyer’s failure to comply with any condition or specification that may be set forth in the Proposal. Buyer agrees to indemnify and hold Seller harmless for any claim resulting from or related to the conduct referenced in subparagraphs (b) through (g) hereof.
E. Buyer’s remedy against Seller, if any, shall be limited exclusively to the repair and/or replacement of the Goods. If non-defective Goods, including parts, are returned to Seller, such are subject to re-stocking and additional shipping and handling fees payable by Buyer. Seller also may charge a processing fee where Buyer requires the use of a third-party client/contractor management program, or a portal specified for processing payment. Buyer shall remain liable for labor costs incurred by Seller unless such labor costs arise from Seller’s defective performance or are expressly waived in a signed writing by Seller. An exchange of emails between authorized representatives of both Parties explicitly setting forth such waiver shall establish such signed writing.
11. Independent Contractor Status. When providing services under this Agreement, it is expressly agreed that the Seller (and its employees) are acting as an independent contractor and not as an employee of Buyer. The Seller and the Buyer acknowledge that this Agreement does not create a partnership or joint venture between them and is a contract for the provision of the Goods, including services. Seller acknowledges that Buyer is not required to make any contributions for social security, local, state, or federal taxes, unemployment compensation, worker’s compensation, insurance premium, profit-sharing, pension or for any other employee benefit for Seller or Seller’s employees during the term services are being provided to Buyer.
12. Right of Substitution. Buyer acknowledges that Seller may, at its option and in its sole discretion, assign the employee(s) who is to perform the agreed upon services and/or engage a third-party sub-contractor to perform some or all such services.
13. Autonomy. Buyer acknowledges that Seller shall have full control over the working time, methods and decision making in relation to the provision of the Goods, including services, to be provided to Buyer. The Parties agree that Seller shall work autonomously and not at the direction of the Buyer. Notwithstanding that, Seller will be responsive to the reasonable needs and concerns of Buyer, and Buyer will accommodate the reasonable requests of Seller to enable it to perform the services.
14. Suspension of Performance. Seller may suspend the performance of the Agreement, at Buyer’s expense, if Seller determines that performance of the Agreement may compromise the safety of its employees or require work schedules that exceed 16 hours in a 24-hour period.
15. Time Not of the Essence. Time of performance of the Agreement, including the provision of services, is not of the essence.
16. Breach. If either Party breaches any covenant, representation, or warranty contained in the Agreement as relates to the provision of the Goods, except as provided herein, the non-breaching Party shall be entitled to the remedies available under Ohio R.C. 1302 et seq. Notwithstanding anything herein to the contrary, under no circumstances shall Buyer’s damages exceed the Purchase Price for the provision of the Goods.
17. Insolvency. Either Party may terminate this Agreement immediately upon written notice to the other Party if the other Party executes an assignment for the benefit of its creditors; or an examiner, administrator, trustee, receiver or similar officer is appointed for any or all of the other Party’s assets; or the other Party files or has filed against it a petition under bankruptcy or similar laws providing for its reorganization or liquidation; or the other Party is adjudged to be insolvent, bankrupt or is otherwise unable pay its debts when due; or an order is made or an effective resolution is passed for the winding-up of the other Party; or any distress, execution, sequestration, attachment or other process has been levied or entered upon or sued out in respect of the other party or against any property or asset of the other Party.
18. Notices. Any notice, consent or request permitted or required by this Agreement must be in writing and (i) personally delivered; or (ii) sent by registered mail, postage prepaid and return receipt requested, or by reputable express delivery service (and delivery shall be deemed to take place when deposited for delivery), in each case to the addresses specified below or (iii) by email with read receipt. Either party may update its address for notices by providing written notice in accordance with this Section.
If to Seller, to:
Boiler Specialists, Inc.
1669 Merwin Avenue
Cleveland, Ohio 44113
admin@boilerspecialists.com
If to Buyer, to:
the address set forth in the Proposal.
19. Confidential Information.
A. Non-Disclosure. The Parties hereto each acknowledge that they may receive Confidential Information from the other Party in connection with the design and development of the Goods. Each Party agrees and covenants that it shall use such Confidential Information only as necessary and only in strict accordance with this Agreement. It shall not at any time disclose, appropriate, or use such Confidential Information for its own behalf or on behalf of others, and shall at all times prevent its directors, officers, employees, agents and independent subcontractors, and the directors, officers, employees, agents and independent subcontractors of any of their parent companies, subsidiaries, and/or affiliates, from doing so. The Parties also acknowledge that, at all times, each Party has retained, and shall continue to retain, complete title to its respective Confidential Information. Each Party shall restrict its circulation of any Confidential Information to such persons who necessarily must have access to such Confidential Information in order to perform its respective obligations hereunder with respect to the design and development of the Goods. Upon request or upon termination of this Agreement for any reason whatsoever, each Party hereby agrees to promptly return all Confidential Information, including all copies, abstracts, or summaries made, regardless of the form in which embodied and whether or not authorized, to the other Party or, at such other Party’s election, destroy the same in the presence of an authorized representative of the other Party. Each Party shall obtain from its key personnel separate undertakings with respect to the restriction of circulation, the making of any copies, abstracts or summaries, and the return, as aforesaid, of any Confidential Information. Each Party agrees and covenants to conduct all design, prototyping and sampling activities performed by it only in areas over which it maintains strict and exclusive control of access and security, and to keep all such areas strictly secure against access by any third-parties at all times during which any of the designs and/or samples or prototypes of the Goods are present therein. Each Party shall cause its respective employees, officers and directors, and shall use its best efforts to cause its respective agents and representatives, to keep confidential and not disclose to any person or entity the terms of this Agreement, without the prior consent of the other party hereto, except where such disclosure is required by federal securities laws or any other applicable law, rule, judgment, court order or decree.
B. Injunctive Relief. Each Party understands and agrees that any breach of the terms of this Section would result in irreparable injury and damage to the other for which such injured Party would have no adequate remedy at law; the Parties therefore also agree that, in the event of said breach or any threat of such breach, the injured Party shall be entitled, in addition to any other remedies to which it may be entitled at law or in equity, to an immediate injunction and restraining order to prevent such breach and/or threatened breach and/or continued breach by the breaching party and/or any and all persons and/or entities acting for and/or with and/or on behalf of the breaching party, without the necessity of proving its damages.
