Account General Terms & Conditions

TITLE/RISK OF LOSS: Where applicable, title and risk of loss with respect to all product delivered shall pass from Dennis K. Burke Inc. to the Customer at the time the product passes upon delivery to Customer Tank flange.

QUANTITY/ MEASUREMENT: Where applicable, Quantities billed shall be per the bills of lading or meter tickets provided by Dennis K. Burke Inc to customer as actual amount delivered to Customer. Unless otherwise specified, all quantities shall be unadjusted for temperature.

PAYMENT: Customer agrees to pay all amounts due, without offset or deduction, via means acceptable to Dennis K. Burke Inc. and within the terms of payment specified by Dennis K. Burke Inc. Notice of pricing dispute must be received by Dennis K. Burke Inc. within seven (7) working days of the execution of any agreement or purchase order. The payment due date and terms of any cash discount will be printed on the agreement or purchase order. Customer agrees to not take any such discount unless in compliance with discount terms and to not deduct any greater amount than that allowed.

ENFORCEMENT FOR NON-PAYMENT: Upon failure by the Customer to pay the full amount due to Dennis K. Burke Inc. within the payment term, Customer agrees to pay a service charge of the lesser of 1.5% per month or the maximum amount allowable under state law on any outstanding past due balance and to pay all attorney's fees, expert's fees, costs, and expenses incurred by Dennis K. Burke Inc. in the enforcement of Customer's obligations or collection of the account and amounts due thereunder, including, if necessary, the fees and costs incurred in filing a lawsuit in any Massachusetts court with proper jurisdiction to recover payment(s) due from the Customer.

TAXES: Unless otherwise stated, selling prices are exclusive of all taxes, assessments, and fees, now or hereafter imposed by federal, state, or local governments. Customer agrees to pay Dennis K. Burke Inc. promptly upon demand the full amount of any such taxes or surcharges which may be levied against, paid, or incurred by Dennis K. Burke Inc. at any time with respect to the delivery or sale of the product. Customer also agrees that, in the event of a tax rate increase and any agreement or purchase order is written to include taxes in the selling price, the price will be adjusted accordingly.

CREDIT: Customer agrees to immediately inform Dennis K. Burke Inc.'s Credit Department of any financial or other material change in the condition of its business, upon which a credit decision may have been based. Extension of credit, if any, is made at the sole discretion of Dennis K. Burke Inc. and may be altered or withdrawn at any time without cause or notice. Where required by Dennis K. Burke Inc., Customer agrees to prepayment or accelerated payment for any delivery which is contemplated or which has been made.

INSURANCE: Customer shall at all times carry and maintain in full force and effect insurance policies as required by applicable law, including without limitation a comprehensive general liability insurance policy covering bodily injury (including death); broad form property damage including injury to, or destruction of, tangible property, including loss of use therefrom; contractual liability; and personal injury. All such policies shall name Dennis K. Burke Inc., and any party in privity with Dennis K. Burke Inc. and any employees, agents, or servants of Dennis K. Burke Inc., and required in writing by Dennis K. Burke Inc. from time to time, as additional insureds on a primary and non-contributory basis.

CLAIMS: Customer agrees to notify Dennis K. Burke Inc. promptly after delivery of product of any claim(s) against Dennis K. Burke Inc. as to shortage in quantity, defect in quality, or any other matter, which notice must be received in writing by Dennis K. Burke Inc.'s Customer Service Department not later than seven (7) business days following delivery, and to provide full supporting documentation, which must be received by Dennis K. Burke Inc. within thirty (30) days after delivery, or the claim shall be deemed to have been waived. Customer agrees to give Dennis K. Burke Inc. reasonable opportunity to conduct an investigation of any claim and to not settle any claim by a third party without Dennis K. Burke Inc.'s approval. Customer agrees that Dennis K. Burke Inc. shall not be held liable for indirect, incidental, or consequential damages and that any indulgence, forbearance, compromise, settlement, extension, or variation of terms by Dennis K. Burke Inc. shall not affect Customer's liability.                                                                                                         

INDEMNITY: To the fullest extent permitted by law, Customer agrees to defend, indemnify, and hold harmless Dennis K. Burke Inc., any affiliates of Dennis K. Burke Inc., and their respective managers, members, partners, officers, directors, shareholders and employees, from and against any and all claims, damages, and losses, including environmental damages, arising out of or resulting from any act or omission of the Customer or its employees, agents, consultants, or servants. This indemnity obligation of the Customer applies to allegations made as to acts or omissions of its employees, agents, consultants, or servants, and the triggering of this indemnity obligation does not require a finding beyond the allegation made. It is not the intent of this provision that Dennis K. Burke Inc. be indemnified for its own acts or omissions.

WARRANTIES: Dennis K. Burke Inc. makes no warranties, either express or implied, as to any matter whatsoever, including without limitation, as to the condition of the products or equipment, their merchantability, their fitness for their ordinary use, or their fitness for any particular purpose.

LIMITATION OF LIABILITY: Except for damages directly resulting from Dennis K. Burke Inc.’s gross negligence or willful misconduct, Dennis K. Burke Inc.’s liability shall not exceed the price of the product or equipment loaned/sold hereunder or the price of that portion of the product or equipment on which liability is asserted.

FORCE MAJEURE: Dennis K. Burke Inc. shall not be liable for failure to perform any obligations under any agreement or purchase order where such failure may be due to causes reasonably beyond Dennis K. Burke Inc. ’s control, including acts of God, (e.g., storms, floods, lightning or earthquakes), fires, explosions, wars, civil unrest, labor disputes, transportation breakdowns, harbor closings, government restrictions (e.g., allocations, priorities or price controls) or any other such cause. Dennis K. Burke Inc.’s ability to supply products further is dependent on their continued availability from Dennis K. Burke Inc.’s usual and anticipated supply sources. In the event such products are not readily available in sufficient quantities to meet Dennis K. Burke Inc.’s total commitments, Dennis K. Burke Inc. shall have the right to allocate in a fair and reasonable manner. No such occurrence shall relieve Customer of the obligation to pay in full for product actually delivered. Dennis K. Burke Inc. also reserves the right to suspend the performance of its obligations under any agreement or purchase order if it deems, in its sole discretion, that there are health and safety concerns for Dennis K. Burke Inc.’s employees in the performance of those obligations. In the event that Dennis K. Burke Inc. makes such a determination, this shall not constitute a breach of any terms of any agreement or purchase order by Dennis K. Burke Inc. and the Customer shall not have any recourse against Dennis K. Burke Inc.

GOVERNING LAW/JURISDICTION: Customer agrees that all actions between the parties shall be brought in the state or federal courts in the Commonwealth of Massachusetts, consents to the jurisdiction thereof, and agrees that Massachusetts law shall govern these terms and any dispute arising out of these terms or the contract to which these terms are attached, regardless of the application of any conflict of law principles.