Terms
and Conditions
effective 06/00
GENERAL
All orders shall be subject to the approval and acceptance of Wet Dog
Glass, hereinafter referred to as the Company, at its office in New Orleans,
LA. Purchaser must express in writing to the Company any objection Purchaser
has to the terms and conditions contained herein within five (5) days
of receipt of this document, otherwise assent to the terms and conditions
herein shall be conclusively presumed. All Company quotations or proposals,
all acceptances of Purchaser’s orders, and all sales by the Company
are expressly limited to, and expressly made conditional upon, the Purchaser’s
acceptance and assent to the Standard Terms and Conditions of Sale as
set forth herein, notwithstanding receipt of, or acknowledgment of, the
Purchaser’s order form or specifications containing additional or
different provisions, or conflicting oral representations by any agent
or employee of the Company. No waiver, change or modification of any terms
or conditions on the face or reverse hereof shall be binding on the Company
unless made in writing and signed by an officer of the Company.
PRICES AND TERMS
All prices are subject to change without notice. Quotations
are subject to changes after a period of 60 days. Terms are 30 days net,
subject to approved credit. Shipments can be expedited, prior to establishing
credit, by including check with order for full amount or including check
for 1/3 down and specifying C.O.D. Any order valued at $50,000 or more
for non-standard material shall be subject to progress payment terms.
Any order originating outside the contiguous United States, Alaska, Hawaii,
or Canada shall be subject to an Irrevocable Letter of Credit confirmed
by a U.S. Bank or a sight draft. If, at Purchaser’s option, completion
of manufacturing is delayed beyond 180 days after receipt of an order,
starting on that date a price escalation of 1% per month of the gross
order amount will apply. Further, if at the Purchaser’s option, shipment
of an order is delayed more than ten days after completion of manufacturing,
Purchaser will be invoiced at that date and will be responsible for any
storage or other costs involved. The Company reserves the right to ship
equipment and invoice for same even though minor components are backordered,
if the missing items are late due to circumstances beyond the Company’s
control and said components will not prohibit initial installation work
by the Purchaser. A finance charge at a rate of 2% per month (annual percentage
of 24%), or the maximum allowable rate, whichever is less, will be added
to unpaid invoices over 60 days old; said interest shall relate back and
commence from the date of invoice.
PERFORMANCE GUARANTEE
The Company guarantees to the original purchaser that
the equipment of its manufacture will perform at rated parameters as stated
only when (1) properly installed, connected, started, operated and maintained
in accordance with Company Instruction(s), and/or Information Guide(s),
as revised from time to time, and (2) used for the applications specified
and (3) used in the environments as specified or as limited. If equipment
is part of a greater system, the Company accepts responsibility only for
the equipment manufactured by it, and only when Purchaser complies with
the restrictions herein. The Company shall not be responsible nor liable
for any claims and/or losses, either direct, incidental, consequential,
punitive or otherwise arising out of the selection of its products to
fulfill the requirements of any plans and specifications not prepared
or approved by the Company. Due to the nature of fuel fired equipment,
its controls and accessories, there will always exist an explosion and
fire hazard. To minimize such hazards, this equipment must be installed,
operated, and maintained in accordance with the appropriate instruction(s)
and/or information guide(s), as revised from time to time. Purchasers
of the Company’s equipment waive subrogation on all items covered
under their own or other insurance.
LIMITED WARRANTY ON THE EQUIPMENT ITSELF
The Company, for a period of one year from shipment,
warrants each product or system of its own manufacture, with the exception
of burner blocks and other refractory materials (which the Company does
not warrant), to the original purchaser to be free from defects in material
and workmanship under normal use, service and maintenance. Normal use,
service and maintenance means: a. Not in excess of the maximum temperatures,
volumes or other parameters
specified in the Company’s Product Bulletins, Specification
Sheets, and/or quotation(s). b. Using only fuels specified in the Company’s
Product Bulletins, Specification Sheets, and/or quotations. c. Operation
and maintenance in compliance with the appropriate Instructions and/or
Information Guides. Products or goods not of Company manufacture supplied
in piece, or as components to a system designed or sold by the Company,
are not covered by this warranty other than any adjustment or warranty
obtained from the manufacturer of that component or product to the extent
that such adjustment or assignment of warranty is not prohibited. This
warranty does not apply to damage caused by any or all of the following
circumstances or conditions: a. Freight damage, as Purchaser’s remedy
for any such damage shall be from the carrier. b. Parts and/or accessories
or components not obtained from or approved by the Company. c. Any consequential
or incidental damage arising from the use of the product, system or other
goods manufactured or sold by the Company. d. Misapplication, misuse,
abuse, and failure to follow the Product Instruction Sheets and/or Information
Guides. The sole and exclusive remedy under this warranty for any claim
of damage in connection with the sale or furnishing of materials by Company
shall be limited to the repair or replacement, without charge for labor
or materials, of any parts found upon examination by the Company to have
been defective, and shall not include field erection costs, if any, involved
in the exchange. The remedy shall be conditioned upon receipt of written
notice by the Company of any alleged defects promptly after discovery
thereof within the warranty period, and shall not be deemed to have failed
of its essential purpose so long as Company is willing to repair or replace
any defective parts or materials. Generally, consent for the return of
items to Company, if given, will be upon the condition that the purchaser
assumes and prepays all carrier charges. This warranty is exclusive. The
Company expressly disclaims any and all other warranties, whether
express or implied, including any implied warranty or merchantability
or fitness for a particular purpose. No person, including any dealer or
representative of the Company, is authorized to make any representations
concerning the Company products or systems on behalf of the Company or
to assume for the Company any obligations beyond those contained in this
warranty. The Company reserves the right to make design and other changes,
modifications or improvements upon its products or systems, without any
obligation to install same on any previously sold or delivered products
or systems.
LIMITATION OF LIABILITY
It is expressly agreed that the Company’s liability
is limited as stated herein. If the Company should be found liable to
anyone in any theory (except any express warranty where the remedy is
set forth in this document) for loss, harm, or damage, the liability of
the Company shall be limited to the lesser of the actual loss, harm, or
damage, or the original
purchase price of the involved equipment, system or service
when sold (or when service performed) by the Company to its Purchaser.
This liability is exclusive and regardless of cause or origin resulting
directly or indirectly to person or property from: a. The performance
or non-performance of any obligation set forth in this warranty; b. Any
agreement, oral or written, including specifications, between the Company
and the Purchaser. c. Negligence, active, passive or otherwise, of the
Company or any of its agents, employees, or independent contractors. d.
Breach of any judicially imposed warranty or covenant and, e. Misrepresentation
or strict liability involvement. Purchaser shall indemnify and hold the
Company harmless against any and all debts, obligations, costs and damages,
including attorneys’ fees, rising from any claims or causes of action,
whether in law or equity, or arising in contract, tort or otherwise, which
may be asserted against the Company by any person or entity not a party
to this Agreement, resulting from the subsequent sale by Purchaser or
the reinstallation by Purchaser, use, repair, maintenance or decision
to purchase the goods and materials described herein, provided, however
that this indemnity and hold harmless provision shall not apply to the
Company’s own acts of willful misconduct in the initial production
thereof.
DELIVERY
The quoted time of delivery is understood to be from
date of receipt of all necessary information including Purchaser’s
approval, if applicable. Any delay in delivery of any installment shall
not relieve purchaser of its obligation to accept remaining deliveries.
The Company shall not be liable for damages or for cancellation of the
contract as a result of any delay due to any cause beyond the Company’s
reasonable control including, but not limited to, act of God, act of the
purchaser, embargo, or other governmental acts, regulations or requirements,
fire, accident, labor disputes, war, civil insurrection or riot, delay
in transportation, or the inability to obtain necessary labor, materials,
or manufacturing facilities. In the event of any such delay, the date
of delivery may be extended for a period equal to the time lost by reason
of the delay. All shipments, unless otherwise specified, shall be FOB
shipping point and the Purchaser assumes responsibility for damage or
loss in transit. Inspection of products shall occur at the Company’s
place of business, conducted by Purchaser’s authorized representative.
It is agreed that the Purchaser shall notify the Company of any shortage
within fifteen (15) days from receipt of the material. In the event of
loss or damage incurred in transit, claims for parts broken or lost in
shipment are to be filed with the transportation company by the Purchaser.
Purchaser bears the risk of loss during transit.
PACKAGING
All list prices representing products manufactured by
the Company are subject to addition of crating fees.
CANCELLATION OF ORDERS
If, for any reason, the purchaser desires to cancel an
order, such cancellation shall only be with the consent of the Company,
and then only after payment is made to the Company in cash of the following
cancellation charges: (i) 15% of the purchase price for any order cancelled
before orders for materials are placed by Company; (ii) 50% of the purchase
price for any order cancelled after orders for materials are placed by
Company and before Company begins any fabrication of Product to fill such
order; (iii) 100% of the purchase price for any order cancelled after
Company begins such fabrication.
RETURNS AND RESTOCKING CHARGES
Because most of the Equipment sold by the Company is
made to order, Equipment may be returned only upon prior written authorization
of the Company. Generally, consent, if given, will be upon the condition
the purchaser assumes all carrier charges, responsibility for damages
in transit, and a restocking charge, and then only if the so authorized
material is in new and unused condition and returned within one year from
the original date of shipment. The credit will be based on the original
invoice price or the current price, whichever is lower, less the applicable
restocking charge.
SERVICE
Unless otherwise noted herein, the cost of the equipment
does not include service or installation. All services performed by the
Company are subject to purchaser’s payment of the Company’s
prevailing charges plus necessary travel and living expenses.
TAXES
Any tax or taxes that may be imposed upon the goods that
are the subject of this sale, or upon the sale or delivery shall be added
to and become a part of the contract price.
GOVERNING LAW
The terms of this agreement shall be construed in accordance
with the laws of the State of Louisiana and venue for all disputes shall
be in Orleans Parish, LA.
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