These general terms and conditions govern all orders placed with and any agreements entered into with Raycap, Inc. or its affiliates. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract will prevail to the extent they are inconsistent with these general terms and conditions.
1. AGREEMENT ORDER
These terms and conditions constitute the agreement (“Agreement”) between Raycap, Inc. (together with its affiliates, “Seller”) and the purchaser of products from Seller (“Buyer”) in connection with the delivery of the products as listed in an order (“Products”). By placing an order with Seller, this Agreement governs the order and the relationship between Seller and Buyer. The order will include but not be limited to, the price, quantity of products (“Products”) and any specifications (“Specifications”). No order accepted by Seller may be cancelled or rescheduled except with the express written consent of Seller. This Agreement prevails over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement.
2. PRICES AND TAXES
Seller’s published and quoted prices are subject to the following, unless otherwise agreed in written:
(a) All published prices are subject to change without notice. Such changes will not have effect on Products already dispatched.
(b) Shipments will be billed at the prices in effect on the date of Seller’s acceptance of Buyer’s order or at the prices in effect on the date of shipment.
(c) Stenographic and/or clerical errors are subject to correction.
(d) Published or quoted prices do not include taxes, duties, insurance or transportation.
(e) Any change orders are subject to applicable price increases and Seller’s prior approval. Buyer is responsible for payment of all export and import licenses, custom fees and duties, value added taxes, turnover taxes and other taxes and costs in respect to the products sold to Buyer. If Seller agrees to bear any such taxes or costs and if such taxes or costs should increase between the date of the order/contract and the date of delivery, Seller has the right to increase the price of the goods for the same amount as the increase.
3. DELIVERY AND RISK; INSTALLATION
Unless otherwise specifically agreed to in writing, all deliveries are made FCA point of shipment (INCOTERMS 2000). Buyer has the risk for loss or of damage to the Products during transportation. Any dates of dispatch stated in the order acknowledgement are only estimates by Seller, and Seller is not liable for failure to dispatch by any such date. However, Seller will make all reasonable efforts to meet its estimated dispatch date. Seller will inform Buyer and the recipient of the Products as advised by Buyer about the delivery time. If Seller anticipates or has reasonable reason to believe that a delay in the delivery will occur, Seller will notify Buyer in writing stating the cause of the delay as well as estimated new delivery dates. Buyer is responsible for requiring its installer to comply with all applicable industry standards, regulations and specifications communicated to Buyer by Seller in connection with the installation of the Products. FAILURE TO COMPLY WITH THE FOREGOING SENTENCE MAY VOID THE WARRANTY APPLICABLE TO SUCH PRODUCTS.
4. CANCELLATION OF ORDER
In the event that Buyer wishes to cancel all or any portion of the order without default on the part of Seller and subject to Seller’s written approval, Buyer is liable to Seller for cancellation charges up to the total value of the order.
5. OWNERSHIP AND INTELLECTUAL PROPERTY
(a) Ownership of the Products does not pass to Buyer until the Products have been fully paid for in accordance with Section 2 above, including any interest and costs due. Until such payment has been made, Seller is entitled to enter Buyer’s premises and repossess such Products; recover payment for the Products and at any time require Buyer to immediately return the Products to Seller.
(b) Buyer does not acquire any intellectual property rights relating to the Products through purchasing the Products. All intellectual property rights relating to the Products are retained by Seller.
(c) Seller provides no warranty that any particular use, for any particular purpose of the Products in any particular jurisdiction is compatible with any intellectual property rights held by any third party. However, Seller undertakes, subject to the limitations
as set forth herein, to hold Buyer harmless in respect of any claim that selling, offering for sale, importing or keeping Products furnished hereunder or any product containing Products furnished hereunder constitutes infringement of any patent, utility model, petty patent or innovation patent where such claim is a direct result of the inherent features or operation of the Products.
(d) Seller’s aggregate liability for any and all claims under Section 5(c) above will not exceed the purchase price received by Seller, net of taxes, duties, insurance or transportation for the Products subject to such claims.
(e) Seller may, in its sole discretion, choose to settle any claim for a sum equal to or less than its liability under Section 5(d) above.
(f) If as a result of any suit or settlement Buyer is prohibited from selling, offering for sale, importing or keeping Products furnished hereunder, Seller will, in its sole discretion and at its expense, either replace them with products to which such
prohibition does not apply, or return an equitable portion of the selling price and transportation costs thereof.
(g) Seller may use photos and video of any Products and installations, including on Customer’s site, in any of its product, marketing or promotional materials.
If not otherwise agreed to in writing, payment for Products sold to Buyer will be made without discount, within 30 days or such other written agreed period from date of invoice, in the currency set forth in the applicable sales confirmation, and otherwise in accordance with the payment terms set forth in the sales confirmation (if any). In case of default of payment Buyer will pay a demand interest according to a rate of 1.5% of the unpaid amount per starting month. If the default is due to causes other than those to which Section 8 applies, Seller is entitled to cancel the order by written notice.
Seller warrants to Buyer that the Products will function, in all material respects, as specified in the Specifications for a period of 12 months from the date of delivery. Product defects detectable at the time of inspection are to be notified to Seller in writing immediately or, at the latest, five days following delivery of the Products. If no such notice has been given, then the Products are deemed accepted by Buyer. Buyer will notify Seller in writing of defects detected during the warranty period, but at a later stage than the receipt of the Products, immediately, and within five days from the defect was found by Buyer. Buyer’s claim under this clause is null and void in the event of late notification. In the event of a timely and rightful notification by Buyer under this Section 7, Seller will, at its own discretion, either repair or replace the defective products or, if such repair is not reasonably feasible, refund the purchase price upon the return of the defective Product. Seller will have 60 days after receipt of written notice specifying a warranty issue to review such claim, confirm applicability of warranty and remedy the claim or
commence a diligent attempt to remedy such claim. If Seller opts to replace the Products, Seller’s liability is limited to the cost of the nonconforming component and excludes the cost of labor or equipment required to install the replacement component. If Seller requires nonconforming Product to be returned to Seller’s facility, returned material must comply with the packing and shipping conditions of the original material. Under no circumstances will Seller accept an invoice or issue a credit memo for the returned material prior to Seller’s own investigation. Seller will apply reasonable efforts to have such returned material replaced within 30 days from receipt of returned Products. Repair, re‐delivery or refund of the purchase price as specified above is Buyer’s sole remedy for breach of warranty. SELLER’S WARRANTY IN THIS SECTION 7 IS IN LIEU OF AND EXCLUDES (AND SELLER HEREBY EXPRESSLY DISCLAIMS) ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE AND ANY WARRANTY OF NON‐INFRINGEMENT. SELLER DOES NOT WARRANT THAT THE PRODUCTS WILL CONFORM TO THE SPECIFICATIONS IN ALL RESPECTS; PRODUCTS MAY HAVE MINOR VARIATIONS IN COLOR, SIZE, MAKEUP OR OTHERWISE FROM ORDER TO ORDER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7, THE PRODUCTS ARE SOLD ON AN AS IS, WHERE IS BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER.
8. FORCE MAJEURE AND OTHER CONTINGENCIES
In the event of force majeure, the party being delayed or damaged thereby will inform the other party as soon as possible but in any event within seven days after the start of such force majeure specifying the nature of the force majeure as well as the estimated duration thereof. In the event the force majeure situation continues for more than 60 days or is expected to last longer than 60 days then either party is entitled to terminate this Agreement by simple notice in writing and without either party being entitled to any claim for damages. Otherwise both parties’ rights and obligations will be suspended and new supply dates will be agreed upon between the parties. “Force majeure” means an occurrence beyond the control of the party affected,
provided that such party could not reasonably have foreseen such occurrence at the time of entering into the agreement or the order being placed and could not reasonably have avoided or overcome it or its consequences. In the event of unforeseen circumstances affecting Seller or Buyer or both, the parties will jointly review the situation and attempt to find a solution, which is commercially reasonable and acceptable to all parties concerned, and vary this Agreement and/or any agreement entered into by the parties accordingly.
9. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGE, RESULTING LOSS OR DAMAGE, OF ANY KIND, HOWSOEVER CAUSED. IN NO EVENT WILL SELLER BE LIABLE FOR ANY SUM GREATER THAN THE PURCHASE PRICE RECEIVED BY SELLER FOR THE RELEVANT PRODUCT(S). SELLER WILL NOT BE LIABLE FOR ANY THIRD PARTY’S CLAIMS TO BUYER AND/OR THIRD PARTY’S CLAIMS MADE TO SELLER, EVEN IF CONNECTED WITH THE PRODUCTS DELIVERED HEREUNDER.
(a) This Agreement is governed by and subject to the laws of the location in which the Seller affiliate fulfilling the order is located.
(b) The undertaking given at Section 5(c) above will not apply in respect of any claim unless: (i) Seller is notified in writing by Buyer within 15 days of Buyer becoming aware of such claim; (ii) Buyer gives Seller full authority to determine, in its sole
discretion, how the claim should be defended; and (iii) Buyer provides Seller with any information or assistance which it reasonably requests.
(c) The undertaking at Section 5(c) above will not apply in respect of any claims which result from: (i) compliance with Buyer’s designs, specification or instruction; (ii) modification of the Products by a party other than Seller after delivery by Seller; or
(iii) use of the Products where such use is not inherent in normal operation of the Product or where Seller is able to specify a use that is not subject to the claim.
(d) Seller may assign, transfer, subcontract or delegate its responsibilities under an order without prior approval of Buyer.