Diamond Fiberglass Standard Terms and Conditions of Sale
ARTICLE 1. DEFINITIONS
1.1 The words, “we”, “our”, “ours”, and “us” mean the Seller. The words “you”, “your” and “yours” mean the Purchaser to whom this Proposal is made. The word “Agreement” means this Proposal and your acceptance of this Proposal, and includes all documents expressly incorporated by references.
1.2 “Equipment” means an individual piece or component of the supply of the Agreement. For example, Equipment may be an individual tank, or it may be a joint of pipe.
ARTICLE 2. DURATION OF PROPOSAL-EFFECT
2.1 We may withdraw this Proposal at any time until we receive your written acceptance. If we do not receive your written acceptance within 30 days of the date of this Proposal, the Proposal will expire and be void. Any changes which you wish to make to this Proposal must be expressly accepted by us in writing; otherwise, those changes will be void.
ARTICLE 3. PRICING AND ESCALATION
3.1 Our material prices, including construction materials, are based on current prices at the time of the Proposal. Any significant price increases (meaning a price increase exceeding 10%) in materials necessary to perform the work, that occur during the period between the date of this Proposal and receipt of materials of the Project, shall cause the price to be equitably adjusted by an amount reasonably necessary to cover any increase.
ARTICLE 4. SHIPMENT AND DELIVERY
4.1 Our proposed shipping schedule depends on the date on which you accept this Proposal. If you do not provide us promptly with all drawings, information, and approvals, then you will be responsible if we fail to meet our proposed shipping schedule. We will deliver the Equipment F.O.B. Points of Shipment. This will be the only delivery which we are required to make to you. Title and risk of loss will pass to you when we make this delivery.
4.2 We agree to store the Equipment after the agreed date of completion for two weeks at no charge to you. After that two-week period, if you refuse to accept the Equipment for delivery, you agree that we may assess storage fees on the purchase in the amount of 1.5% per month x the value of the Equipment to be stored. Further you agree that we may invoice for payment of the Equipment per Section 8 below.
ARTICLE 5. TERMINATION
5.1 Once you have accepted this Proposal, you may not terminate or cancel the Agreement except by giving us written notice. If you terminate or cancel, you must pay us for our costs of labor, material, engineering, administration, and overhead incurred up to the date we received termination or cancellation charges from our vendors. If you request, we will provide you with documentation in support of these costs.
ARTICLE 6. DELAY
6.1 We will not be liable to you for loss or damage which results from delay or failure to deliver any or all of the Equipment, if this delay or failure is caused by one or more circumstances beyond our reasonable control “Force Majeure”. Force Majeure includes, without limitation, acts of God, war, acts of the public enemy, civil disorder, riot, sabotage, governmental action or law or regulation, strikes or labor shortage or other labor problems, fire, flood, earthquake, hurricane, severe weather, health and safety considerations, embargoes, transportation shortage or delays, fuel or material shortages, failure of performance by a vendor or subcontractor, and your failure to give timely approval and comment to documents.
6.2 Our time of performance will be extended by the length of any delay caused by Force Majeure plus a reasonable time to resume our normal operations. If we are ready to ship, but shipment is delayed through no fault of ours, then the date on which we are ready to ship will be regarded as the date of shipment and delivery for all purposes, including payment. You will be responsible for the cost and risks of storage and handling.
ARTICLE 7. WARRANTY
7.1 We warrant to you that the Equipment will be delivered free from defects in material and workmanship. If you find a defect in material or workmanship during the Warranty Period (defined below), you must give us written notice within 10 days of learning of the defect. We will either deliver to you a replacement part, F.O.B. Point of Shipment, or repair the defect in place, at our option. For international orders or orders where we are prohibited from performing the repair ourselves, we may offer, at our exclusive option, the value of our cost of repair at the Point of Shipment as remedy for the repair at the actual jobsite. The Warranty Period will expire at the earlier of the twelve (12) months from initial operation or eighteen (18) months from shipment date.
7.2 We will have no obligation to you under Section 6.1 if:
- a) The Equipment is not paid for in full; or,
- b) You fail to operate or maintain the Equipment in accordance with generally approved industry practice; or
- c) You fail to operate or maintain the Equipment in accordance with instructions from us; or
- d) You fail to give us written notice within 10 days of your discovery of a defect; or
- e) The Equipment has been altered or repaired by someone other than us
7.3 This warranty excludes the following:
- a) Service calls to correct the installation of the Equipment or to explain the usage of the Equipment to You; or
- b) The cost removal and replacement of a defective part from the overall system, if necessary.
- c) Any loss or damage which you sustain after the expiration of the Warranty Period.
7.4 We warrant to you that at delivery, the Equipment will be free of any liens or encumbrances. If there are any such liens or encumbrances, we will cause them to be discharged promptly after you have notified us of their existence. The express warranties we make to you in this Article 6 are the only warranties we will make. There are no statutory, oral, or implied warranties. In particular, there are no implied warranties or merchantability or fitness for a particular purpose. There are no statutory, oral, or implied conditions.
ARTICLE 8. LIMITATION OF LIABILITY
8.1 For the purposes of this Article 7, the words, “we”, “our”, “ours”, and “us” mean the Seller and its employees, agents and subcontractors. Our liability to you under this Agreement or under any cause of action relating to this Agreement, whether based on contract, warranty, tort (including negligence), strict liability or otherwise, will not exceed the price of the Equipment in question. We will not be liable to you for loss of profits or revenue or business opportunity, loss by reason of shutdown of your facilities or inability to operate your facilities at full capacity, cost of obtaining other means for performing the function of the Equipment, or incidental or consequential damages of any nature.
8.2 You will have waived your right to sue us at law or in equity unless you commence your suit within one year from the date on which you sustain the loss or damage which is the subject of your suit. The provisions of this Article 7 shall prevail over any inconsistent provisions elsewhere in this Agreement.
8.3 Liquidated or performance damages are not permitted without agreement by Seller in writing and adjustment to purchase price and / or delivery estimates.
ARTICLE 9. PAYMENT
9.1 You shall receive an invoice for each purchase made, such invoice shall include the price of the item(s) purchased, date of purchase and the amount due for such purchase. You shall pay in full on or before the due date as reflected on such invoice.
9.2 Unless otherwise noted and upon credit review, the due date for each purchase shall be thirty (30) days from the invoice date. Periodically, fabrication is completed and you are not ready for the vessel. The vessel is placed in our delivery hold stock and the invoice is processed for payment. The delivery charge is due thirty (30) days from actual delivery date.
9.3 Special payment terms could be required before order acceptance to cover C.O.D. shipments, pre-payment prior to shipment, and defined process payments for completion of engineering and drawing submittal, receipt of “buy-out” components, and certified percent of completion billing.
9.4 Late payments are subject to a 1 ½% per month fee, pro-rated daily. Collections fees, if incurred to collect on a past due debt, are charged to your account.
9.5 All invoices are payable to Diamond Fiberglass, PO Box 65, Victoria, TX 77902.
ARTICLE 10. TAXES
10.1 You will pay all sales, use, value added, excise, and other taxes which may be levied or assessed on the transfer to the Equipment to you, or on the Agreement, or on our performance under this Agreement. Our price to you does not include taxes of any sort. You will hold us harmless and indemnity us for any taxes due and associated costs of collection that are not paid by you but determined at any point to be taxable.
ARTICLE 11. CHANGES
11.1 We will not make changes in the Equipment unless you and we have executed a written Change Order for such change. The Change Order will include the price adjustment for any added costs of the change plus a reasonable profit. If the change impairs our ability to satisfy our obligations to you, including meeting delivery schedules and performance guarantees, the Change Order will include appropriate modifications to the Agreement. If after the date of this Proposal, new or revised governmental or code requirements shall require a change in the Equipment, the change will be subject to this Article 10.
ARTICLE 12. CONFIDENTIALITY – USE OF DRAWINGS
12.1 You acknowledge that the information which we submit to you in connection with this Proposal includes our confidential and proprietary information, both of a technical and commercial nature. You will not disclose our confidential and proprietary information to third parties without our prior written consent. You will not permit any third party to fabricate components of the Equipment from our designs or drawings. You will indemnify us and hold us harmless and defend us from any claim, suit, or liability based on personal injury (including death) or property damage related to any component of the Equipment which is fabricated by a third party without our written consent.
ARTICLE 13. SECURITY INTEREST
13.1 Until all installment payments, and all other amounts due under this Agreement, have been paid, we shall retain a security interest in the Equipment and, if you sell or otherwise dispose of the Equipment, we maintain interest in the proceeds of such sale or disposition.
ARTICLE 14. ENTIRE AGREEMENT
14.1 The Agreement contains the entire understanding between you and us, and supersedes any prior oral and written understandings between you and us concerning the Equipment, including any document which is not expressly incorporated by reference to this Agreement.
ARTICLE 15. INVALIDITY
15.1 If a final decision of a court of competent jurisdiction holds invalid a portion any sentence of this Agreement, or a sentence of any section of this Agreement, or any Article of this Agreement, the remainder of such sentence or section or this Agreement, as the case may be, shall be valid.
ARTICLE 16. GOVERNING LAW
16.1 The Agreement will be governed by and construed according to the laws of the state or province within which Seller maintains its principal office.