Concrete Washout Pans Terms and Conditions
Terms of Use
Prior to each use of a CWP, Buyer will ensure that the CWP is examined and inspected by an appropriately licensed engineer to verify that: (a) the CWP is in a safe and operable condition; (b) there are no cracks, gouges, excessive wear, rust, corrosion, warping, folding, or other damage (structural or otherwise) to the CWP, including the bed, sides, D-rings, and connection points; (c) The D-rings and the welding on the CWP, including without limitation the welding to connect the D-rings, is not stretched, stressed, or impaired, whether as a result of prior use, storage conditions, failure to maintain the CWP, or otherwise; and (d) the gauge of the CWP is sufficient and appropriate for Buyer’s use. Any deviation from the foregoing factors is referred to as a “Discrepancy” for purposes of these Terms. DO NOT USE THE CWP WITHOUT ADEQUATE TESTING AND DO NOT USE THE CWP IF ANY INADEQUACY, DISCREPANCY, OR OTHER ISSUE (INCLUDING WITHOUT LIMITATION THOSE SET FORTH IN THIS SECTION) IS IDENTIFIED.
It is Buyer’s responsibility to use safe lifting techniques and avoid dangerous conditions, and Buyer will ensure that each CWP is at all times properly craned and/or hoisted, including without limitation adequately securing the CWP, using equipment that is adequately serviced and in a condition sufficient to support the CWP, and which can bear the weight of the CWP while fully loaded. DO NOT USE THE CWP IF OR WHILE IT IS IMPROPERLY HOISTED OR CRANED, WHEN WEATHER, ENVIRONMENTAL, OR LOCATION CONDITIONS CREATE A RISK OF DANGER, OR IN WHICH THE APPLICABLE LIFT OR CRANE IS NOT ADEQUATELY SECURED. DO NOT USE THE CWP WITH IMPROPER OR INADEQUATE EQUIPMENT.
Each CWP, when in good condition and without any Discrepancies, has a limited weight capacity of 12,000 pounds when hoisted with forklift tines, and 7,500 pounds when craned (provided that the chains, crane, forklift, and/or other lifting or hoisting apparatus is capable of holding such weight).
Buyer will test the weight capacity, D-links, and seams prior to each use to verify that the structural integrity of the CWP is unimpaired, the CWP is capable of bearing the weight associated with the intended use, and the seams remain watertight, such testing to be completed with respect to the lift method to be used for the applicable CWP. DO NOT FILL A CWP WITH MORE WEIGHT THAN THE LESSER OF: (A) THE WEIGHT SET FORTH IN THE FOREGOING PARAGRAPH FOR THE APPLICABLE LIFTING METHOD USED; OR (B) THE WEIGHT THE CWP IS CAPABLE OF BEARING BASED ON THE TEST CONDUCTED PRIOR TO THE APPLICABLE USE.
The CWP should be stored in a dry and room temperature location. Exposure to moisture, extreme cold or extreme heat may cause the CWP, the welding, and/or the D-rings to rust, corrode, warp, fold, or otherwise become damaged or lose structural integrity. Any modification, alteration, or other adjustment of the CWP which has not been approved, in writing, by Rhino is strictly prohibited, and any such modification, alteration, or other adjustment of the CWP may: (i) result in Discrepancies, (ii) compromise of the structural integrity or weight capacity of the CWP, or (iii) otherwise result serious bodily harm, personal injury, or other material damages or losses.
BUYER IS SOLELY RESPONSIBLE FOR AT ALL TIMES MAINTAINING A SAFE WORKING ENVIRONMENT. UNDER NO CIRCUMSTANCES SHOULD ANY PERSON BE LOCATED UNDER OR ADJACENT TO A LIFTED OR HOISTED CWP OR IN A POSITION SUCH THAT ANY FAILURE, SLIPPAGE, CRACK, BEAK, ERROR, MIS-OPERATION, OR OTHER EVENT OR CIRCUMSTANCE COULD CAUSE THE CWP OR ITS CONTENTS TO FALL ON, SWING INTO, OR OTHERWISE IMPACT (DIRECTLY OR INDIRECTLY) ANY PERSON OR RESULT IN THE CWP OR ITS CONTENTS FALLING, SWINGING INTO, OR OTHERWISE IMPACTING (DIRECTLY OR INDIRECTLY) ANY PERSON. IF, IN THE COURSE OF USING THE CWP, THE CWP OR THE D-RINGS BEGIN TO FLEX, CRACK, WARP, STRETCH, FOLD, OR THE INTEGRITY OF THE CWP OTHERWISE BECOMES IMPAIRED IN ANY MANNER, IMMEDIATELY STOP ALL USE OF THE CWP AND TAKE CORRECTIVE ACTION. ALWAYS WEAR APPROPRIATE PERSONAL SAFETY GEAR WHILE USING THE CWP AND KEEP BYSTANDERS AND SPECTATORS A SAFE DISTANCE FROM THE CWP. THE CWP IS METAL AND WILL CONDUCT ELECTRICITY, KEEP AWAY FROM SOURCES OF ELECTRICITY. NEVER LEAVE A HOISTED OR CRANED CWP UNATTENDED OR IN A POSITION WHICH IS UNSECURED.
Buyer shall (a) maintain and replace safety and instruction labels on the CWP as necessary to ensure such safety and instruction labels are always visible and legible; and (b) only allow repair, service, or replacement of any portion of the CWP by an appropriately licensed professional to conduct such repair, servicing, or replacement of the CWP. Rhino may, upon Buyer’s request, identify such appropriately licensed professionals, but any such identification shall not constitute a representation or warranty with respect to such person and Buyer is solely responsible for performing its own evaluation and making its own decision with respect to the skill, sufficiency, licensure, and insurance coverage of such person. Rhino will have no liability for the failure of any referred person to adequately or properly repair, service, or replace the CWP.
The useful life of a CWP varies largely based on frequency of use, usage conditions, wear and tear, maintenance, storage conditions, and other factors. Buyer is solely responsible for maintaining the condition of the CWP and evaluating the condition of the CWP prior to use as set forth herein. Buyer makes no representation or warranty with respect to the useful life of the CWP.
Inspection, Acceptance of Goods, and Returns
If the CWP was purchased by Buyer directly from Rhino, Buyer shall have 90 days to inspect the CWP and verify that the CWP meets the designated specifications. Rhino will not accept any returns from, or issue any refunds to, a Buyer that purchased the CWP directly from Rhino unless: (a) the CWP is returned to Rhino, at Buyer’s expense, in the same condition as which the CWP left Rhino’s warehouse; (b) Buyer identifies, and Rhino after its reasonable inspection agrees, that the CWP does not meet the specifications designated for such CWP; and (c) the CWP is returned within the 90 day inspection period from Rhino’s shipment of the CWP (or, if applicable, the Buyer’s pickup of the CWP from Rhino’s warehouse). Any failure by the Buyer to return the CWP and request a refund within such 90 day period shall be deemed an acceptance of the goods and acknowledgment that such goods are merchantable, free of defects and meet the specifications designated for such CWP.
If the CWP was purchased by Buyer from a third party vendor, Rhino will have no obligation to accept any return of the CWP or issue any refund with respect to the CWP. Buyer’s sole recourse will be to return the CWP to the third party vendor from whom the CWP was purchased and request a refund from such third party, subject to and in accordance with the return and refund policies of such third party vendor. Rhino makes no representation or warranty with respect to the return and refund policies of third party vendors and it is Buyer’s obligation to evaluate such policies prior to purchasing the CWP from such vendor.
Assumption of Liability
Buyer understands that use of the CWP is inherently dangerous and that improper use may result in serious bodily harm (including without limitation permanent disability and death). By using a CWP, Buyer assumes all risks and liabilities resulting from the use of such CWP. Rhino neither assumes nor authorizes any person to assume on behalf of Rhino any liability in connection with the sale or use of the CWP.
Payment Terms
With respect to CWP(s) purchased directly from Rhino, unless otherwise agreed to by Rhino, Buyer shall prepay all amounts due with respect to Buyer’s order of the CWP(s) and Rhino will be under no obligation to deliver the CWP(s) to the applicable carrier until such time as all amounts have been paid in full. To the extent Rhino permits payment after shipment of the CWP(s), the payment terms associated with such order will be as set forth on the applicable quote and/or purchase order. However, if the payment terms are not specified on the quote or the purchase order, the following payment terms shall apply: the amount shall be payable in full within 30 days of issuance of the purchase order and, to the extent not paid when due, all past due amounts will accrue interest a rate equal to the lesser of: (a) 2% per month; or (b) the maximum rate permissible by law. Buyer grants to Rhino, and Rhino shall maintain, a purchase money security interest in the CWPs until such time as the purchase price for the CWP(s) and all accrued interest thereon has been paid in full. Rhino will charge Buyer, and Buyer will pay to Rhino, a fee of $35 for each payment made by Buyer that is returned, charged back, rejected, bounced, or otherwise reversed in not completed. In the case of a failed or returned credit card payment transaction, Buyer agrees to be held liable for all charges. Payments received from Buyer will be applied first to any outstanding fees, second to any accrued interest, and last to any principal balance outstanding. Rhino may apply amount received from Buyer against any past-due amounts, including fees, interest, or principal, even if such amounts are specified as payments for any other product or service.
With respect to CWP(s) purchased from any vendor or reseller, Buyer will be responsible for complying with the purchase policies and procedures of such vendor or reseller. Rhino makes no representation or warranty with respect thereto and Buyer is solely responsible for evaluating such policies and procedures prior to making its purchase. If Buyer purchases CWP(s) with a credit card, and a credit card dispute is initiated after the CWP(s) are delivered to Buyer, both Parties will work to resolve the dispute within six months of product delivery. If the dispute cannot be resolved within six months of product delivery, the Buyer will return the CWP(s) to Rhino at Buyer’s expense in the original condition as received.
Delivery
All CWPs are sold: (a) if Rhino has charged Buyer and Buyer has paid for shipping, pursuant to Incoterms 2010 CPT terms; and (b) if Rhino has not charged Buyer for shipping and Buyer is coordinating its own shipping, pursuant to Incoterms 2010 FCA terms.
Buyer may, at Buyer’s sole election and cost, purchase shipping insurance with respect to the shipment and delivery of the CWPs. Rhino will reasonably cooperate with Buyer to the extent necessary for Buyer to procure insurance for such shipping, provided that Buyer notifies Rhino that it intends to procure such insurance at the time of the order.
To the extent Rhino coordinates shipping for the CWPs, Rhino’s sole responsibility is to relay to the carrier the shipping terms specified in the order, provided Buyer has paid for such shipping terms. Rhino makes no representation or warranty regarding the delivery date as shipping, delivery, and performance dates are approximate and not guaranteed. Buyer’s sole recourse with respect to any delay in the delivery date shall be against the third party carrier pursuant to the terms negotiated between Buyer and such third party carrier, if any. Rhino will under no circumstances have any liability to Buyer for any losses, fees, costs, expenses, or damages of any type or nature resulting from any delay in shipment or delivery or which occurs during or in connection with shipping. Cancellation of any part of this contract shall not affect Buyer’s obligation to pay (or Rhino’s right to receive payment for) all amounts due from Buyer.
Compliance
Buyer will comply with all requirements of law applicable to Buyer’s in connection with its use of the CWP, including without limitation maintaining appropriate licenses and permits. Further, during any such time as Buyer may, or may permit any third party, to use a CWP Buyer will maintain a commercial general liability insurance policy and an errors and omissions policy, each in good standing, with policy and coverage limits sufficient to cover any liability which may arise in connection with or as a result of such use.
Representations and Warranties
Buyer represents and warrants that Buyer is, or has engaged third parties that are, appropriately licensed and qualified to fulfill all requirements (including without limitation the requirements set forth in the Terms of Use section above) set forth in these Terms, and will at all times take any necessary steps or measures to ensure the CWP is used responsibly and safely.
Rhino offers to original purchasers buying directly from Rhino a limited warranty of the applicable weight capacity and watertightness set forth in the Terms of Use section hereof from the time of purchase of the CWP from Rhino until the earlier of the first use of the CWP or the one year anniversary of the purchase of the CWP from Rhino (“Warranty”), which such Warranty shall apply only when the CWP: (i) is free of any Discrepancies; (ii) is used pursuant to the Terms of Use section hereof; and (iii) has not been modified, altered, or adjusted from its original state (at the time such CWP was initially sold by Rhino) in any manner. The Warranty is intended to cover product defects only and Rhino is not liable for any defects, expenses, losses, or other damages resulting from the use or misuse of the CWP. The Warranty will be deemed immediately voided and of no further force or effect upon any alteration, modification, or other unapproved adjustment to the CWP, whether performed by Buyer or any other person. BUYER’S SOLE AND EXCLUSIVE REMEDY, AND RHINO’S SOLE AND EXCLUSIVE OBLIGATION, WITH RESPECT TO ANY BREACH OF THE WARRANTY, IS TO REPLACE THE DEFECTIVE CWP WITH A NEW CWP WITH THE SAME OR A HIGHER WEIGHT CAPACITY AS THE DEFECTIVE CWP. IN NO CASE WILL RHINO HAVE ANY LIABILITY OR RESPONSIBILITY WITH RESPECT TO ANY BREACH OF A WARRANTY.
Other than the Warranty, Rhino makes no representations or warranties, express or implied, regarding the CWP(s), including without limitation any representation or warranty of merchantability, fitness for a particular purpose, that the CWP will meet Buyer’s expectations, or otherwise be compatible with the other equipment used by Buyer. Except for the Warranty, the CWPs are offered solely “as is” and Buyer is solely responsible for evaluating the sufficiency and appropriateness of the CWP prior to buying and/or using the CWP. To the extent any warranty of merchantability is imposed by applicable law and cannot be waived, such warranty will not extend to a particular purpose.
Liability
In addition to other limitations on liability set forth in these Terms, in no event will Rhino be liable for: (a) any special, incidental, consequential, or punitive damages of any nature or for any reason (including without limitation any loss of profits, loss of reputation, loss of contract, work outage, delay, or increase in expenses), regardless of the form or action, whether in tort, contract, or otherwise, even if advised of the possibility; (b) any amounts arising out of any use of the CWP if the Terms of Use herein were not followed; or (c) any amounts which are paid for or covered by, or would be paid for or covered by, the insurance policies Buyer is required to maintain pursuant to this Agreement. The aggregate liability, if any, of Rhino to Buyer will not exceed the amount paid to Rhino by Buyer for the purchase of the CWP or, if Buyer purchased the CWP from a third party vendor or reseller, the amount paid to Rhino by such third party vendor or reseller for such CWP.
Successors
If Buyer sells, gifts, or otherwise transfers a CWP to any person or entity (“Successor”), Buyer shall simultaneously provide such Successor with a copy of these Terms. Successor will be deemed to have assumed these Terms from Buyer in all respects and these Terms will be fully binding upon such Successor with respect to the CWP.
Indemnification
Buyer shall defend, indemnify and hold harmless Rhino and its directors, officers, employees, parent, subsidiaries, divisions, affiliates, successors, and assigns (“Indemnitees”) from any and all costs, expenses, fees, fines, losses, or other damages incurred or sustained by Rhino in connection with or as a result of, whether directly or indirectly: (a) Buyer’s use or misuse of any CWP (including without limitation negligence and willful misconduct); (b) Buyer’s failure to comply with any of the Terms; or (c) any other claims, actions, disputes, or proceedings with respect to the CWP(s). Buyer hereby waives and releases Rhino and all other Indemnitees from all rights of contribution or indemnity to which Buyer may otherwise be entitled.
Survival
The rights and obligations of the parties set forth in these Terms will survive and continue in full force and effect notwithstanding the termination of any order or contract.
Integration
These Terms constitute the entirety of the terms between Rhino and Buyer and supersede all conflicting provisions of Buyer’s quotation or other document, unless such other document is in writing and signed by an authorized representative of Rhino.