TERMS AND CONDITIONS OF SALE
These terms and conditions outlined below govern all sales of products (“products”) by Rain Industrial (referred to herein as the “seller”). The applicable sale document shall be provided by seller to buyer. The terms and conditions outlined in this document take precedence over any conflicting, contrary or additional terms and conditions contained in any purchase order, document or other communication (“purchase order”) from buyer.
By accepting delivery of the products or the performance of services described in the applicable sale document, buyer shall be deemed to have accepted these terms and conditions without modification by any prior or later communication from buyer. Seller’s acknowledgment of a purchase order or seller’s failure to object to any conflicting, contrary or additional terms and conditions in a purchase order shall not be deemed an acceptance of such terms and conditions or a waiver of objection thereto.
ORDER ACCEPTANCE POLICY:
Your order or your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. Seller has rights to revoke order acceptance if you show inability to provide proper compliance with all relevant laws and export regulations.
PRICING AND TERMS OF PAYMENT:
Except as otherwise set forth on the front of this document, terms of payment are as quoted in the Sale Document. All prices are FOB Seller’s facilities; and prices do not include any taxes, freight, handling, forwarding agent’s and broker’s fees, consular fees, document fees and import duties or other similar charges, payment of which will be the sole responsibility of the Buyer.
Buyer agrees to pay these taxes unless Buyer has provided Seller with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer’s place of business and any jurisdiction to which Products are to be directly shipped or where Services are to be performed hereunder, or unless the sale is otherwise exempt from these taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon.
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Prices are subject to change by Seller upon Buyer rescheduling or reconfiguration of Orders. Prices are also subject to change in response to supplier price increases, whereupon, Buyer may cancel the undelivered portion of any affected Order by delivering written notice to Seller prior to the shipment thereof and within 5 days of its receipt of notice of the price increase.
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All payments shall be made by cash on delivery, company check, credit card, or by wire transfer to an account which will be designated by Seller in accordance with the terms specified in the Sale Document, without abatement, set-off, or deduction of any amount whatsoever and despite any defense or counterclaim Buyer may have against Seller. A late charge of 1.5% per month (or the maximum rate allowed by law if less) will be assessed on all outstanding amounts not paid within the terms specified in the Sale Document. Buyer shall be liable for costs of collection, including reasonable attorneys’ fees and court costs, in any action to collect past due amounts.
Seller reserves the right to establish and/or change credit and payment terms extended to Buyer when, in Seller’s sole opinion, Buyer’s financial condition or previous payment record warrants such action. Further, on delinquent accounts, Seller shall not be obligated to continue performance under any agreement with Buyer. If Seller believes in good faith that Buyer’s ability to make payments may be impaired or if Buyer shall fail to pay any invoice when due, Seller may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products already shipped.
MAKING PURCHASES:
If you wish to license or make purchases of product or services, you will be asked to supply certain information, including but not limited to credit card or other payment information. You agree that all information that you provide to Seller will be accurate, complete and current. You agree to pay all charges incurred by authorized users of your account and credit card or other payment mechanism at the prices in effect when such charges are incurred. You will also be responsible for paying any applicable taxes, and shipping and handling charges relating to your purchases.
DELIVERY, RISK OF LOSS AND TITLE:
All shipments of Products shall be Ex Works (as defined in Incoterms 2000) Seller’s facility in Austin, Texas. Title and risk of loss and damage shall pass to Buyer upon delivery of Products to a carrier at Seller’s facility. Delivery dates quoted by Seller are estimates only and are subject to various delays, whether in the control or beyond the control of Seller. Buyer acknowledges that any delay in delivery shall not give rise to any liability on the part of Seller whatsoever, including for loss of use or INDIRECT OR CONSEQUENTIAL DAMAGES. Transportation and insurance shall be at Buyer’s sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only. In the absence of specific shipping instructions from Buyer, Seller will select the carrier and method of shipment.
SECURITY INTEREST:
Seller retains a purchase money security interest in the Products delivered to Buyer, and in their accessories, replacements, accessions, proceeds and Products, including accounts receivable (collectively, the “Collateral”) to secure payment of all amounts due under the applicable Sale Document. Buyer’s failure to pay all amounts hereunder in full when and as due shall constitute a default hereof and shall give Seller all rights of a secured party, including the right to repossess and remove all or any part of the Collateral from Buyer. Any repossession or removal shall be without prejudice to any other remedy of Seller hereunder, at law or in equity. Buyer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by Seller to create, perfect, preserve, protect and enforce this security interest.
ACCEPTANCE/RETURNS:
Shipments will be deemed to have been accepted by Buyer upon delivery to Buyer unless rejected upon receipt. Buyer shall perform whatever inspection or tests Buyer deems necessary as promptly as possible but in no event later than three (3) days after delivery, after which time Buyer will be deemed to have irrevocably accepted the Products. Any discrepancy in shipment quantity must be reported within five (5) working days of receipt of the Products. In the event of an over shipment, Buyer shall have the option to either (i) return the Products to Seller at Seller’s expense or, (ii) retain the Products (subject to adjustment of the invoice or the issuance of another invoice to account for such additional items.) Any Product returns shall be subject to compliance with Seller’s Return Merchandise Authorization (“RMA”) policies and procedures, which are available upon request.
COUNTERFEIT OR SUSPECT COUNTERFEIT PARTS:
All Integrated Circuit orders, regardless of origin or supplier, are inspected in accordance with IDEA-STD-1010-B “Acceptability of Electronic Components Distributed in the Open Market”. It is the buyers responsibility to understand their own company policies and contract flow-downs in determining if non-traceable or open market sourcing is acceptable. Buyer is responsible for requesting in writing any advanced lab inspection services such as Decapsulation, X-Ray, Heated Solvents Testing, XRF Testing, Electrical Analysis or other advanced inspection methods. If Buyer should determine Seller has supplied a counterfeit or suspect counterfeit part, Buyer shall immediately notify Seller and allow reasonable opportunity to offer information in explanation or rebuttal. Seller shall be given the opportunity to utilize 3rd party testing to evaluate findings and confirm if parts are suspect counterfeit or counterfeit. In the event Seller confirms these findings, Seller agrees to quarantine the material and issue an RMA for customer credit, refund or part replacement. Seller reserves the right to write any GIDEP notifications in the event buyer is required to report their findings to the Government Data Exchange Program as well as other industry reporting organizations.
LIMITED WARRANTIES AND DISCLAIMER:
NON-CONFORMING PRODUCTS OR SERVICES: SELLER’S ONLY WARRANTIES ARE THAT (A) THE PRODUCTS CONFORM TO THE MANUFACTURER’S PUBLISHED SPECIFICATIONS FOR THE PRODUCTS IN ALL MATERIAL RESPECTS AND (B) SERVICE WILL BE PERFORMED IN A PROFESSIONAL AND WORKMANLIKE MANNER AND IN ACCORDANCE WITH ANY SERVICES SPECIFICATIONS THAT ARE AGREED TO BY BOTH PARTIES IN WRITING.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, ALL PRODUCTS ARE SOLD, AND ALL SERVICES ARE PERFORMED, “AS IS” AND “WITH ALL FAULTS AND DEFECTS” AND SELLER DISCLAIMS ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY RELATING TO ANY PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES REGARDING THE DESIGN AND CONDITION OF THE PRODUCTS OR SERVICES, OR THEIR QUALITY, CAPACITY, SUITABILITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
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Provided that (i) Buyer has given Seller written notice of the failure of the Products to conform to the Products warranty in this Section 5 within one (1) year of receipt of the Products and (ii) the non-conforming Products are returned to Seller (at Buyer’s expense), no later than one (1) year from the date of receipt of the Products, and (iii) Seller confirms that the Products are non-conforming, Seller will, at its option and as the SOLE AND EXCLUSIVE REMEDY OF BUYER for nonconforming Products, either (a) refund amounts paid by Buyer for the Products, or (b) repair or replace, free of charge, the Products that are nonconforming. All sales of conforming Products, unless otherwise agreed in writing by Seller, are non-cancelable, non-returnable and non-reschedulable.
Provided that (i) Buyer has given Seller written notice of the failure of the Services to conform to the Services warranty in this Section 5 within thirty (30) days following performance of the Services and (ii) Seller confirms that the Services are non-conforming, Seller will, at its option and as the SOLE AND EXCLUSIVE REMEDY OF BUYER for nonconforming Services, either (a) refund amounts paid by Buyer for the Services, or (b) re-perform, free of charge, the Services that are nonconforming.
LIMITATION OF LIABILITY:
Buyer agrees that, regardless of the claim or other form in which any legal or equitable action may be brought by Buyer against Seller and/or its affiliates and their respective officers, directors, representatives, agents, subcontractors, and employees (collectively, the “Seller Parties”), none of the Seller Parties shall be liable for any indirect, special, incidental, consequential, exemplary or punitive damages, including, without limitation, loss of profits, revenue, promotional expenses, injury to reputation, or loss of customers. Buyer’s recovery from the Seller Parties or any of them for any claim in any way arising from or related to the Products, Services or this Agreement shall not in the aggregate exceed the amount actually paid to Seller by Buyer for the Products or Services irrespective of the nature of the claim, whether in contract, tort, warranty, strict liability, product liability or otherwise and whether arising in whole or in part from the negligence of any of the Seller Parties.
LEGAL COMPLIANCE AND EXPORT CONTROL:
Buyer shall comply with, and be responsible for obtaining all licenses, permits and other approvals required under, all applicable foreign, national, state and local laws and regulations relating to the purchase or use of the Products or Services, including laws regulating imports and exports and transactions with non-U.S. persons. Buyer certifies that it will be the recipient of Products to be delivered by Seller. Buyer acknowledges that the Products are subject to the export and/or import control laws and regulations of various countries including the Export Administration Regulations of the United States. Buyer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Products sold by Seller cannot be transferred, sold or re-exported to any party on the Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Industry and Security (BIS), any party designated by the U.S. Treasury Department’s Office of Foreign Assets Control, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department.
EXPORT CONROL / USE OF PRODUCTS:
Buyer certifies that it will be the recipient of Products to be delivered by Seller. Buyer acknowledges that the Products are subject to the export and/or import control laws and regulations of the United States. Buyer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Products sold by Seller cannot be transferred, sold or re-exported to any party on the Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Industry and Security (BIS), any party designated by the U.S. Treasury Department’s Office of Foreign Assets Control, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department. Products sold by Seller are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
LAW, VENUE AND LIMITATIONS:
For Products shipped from, or Services performed by personnel from, the Seller’s facility in Austin, Texas, this sale is deemed to be entered into in Travis County, Texas and shall be governed and construed in accordance with the laws of the State of Texas without giving effect to the principles of conflict of laws. If any legal dispute arises between Seller and Buyer relating to the Products or Services, Buyer expressly agrees to the EXCLUSIVE jurisdiction of the state and federal courts serving Travis County, Texas.
ANY LEGAL ACTION BROUGHT BY BUYER AGAINST SELLER MUST BE BROUGHT WITHIN ONE YEAR AFTER SUCH CAUSE OF ACTION ACCRUES REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT OR TORT AND THEREAFTER, ALL SUCH CLAIMS SHALL BE BARRED.
MANDATORY MEDIATION:
If a dispute arises out of or relates to this contract or breach thereof and if said dispute cannot be settled through negotiation, the parties agree first to try, in good faith, to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association before resorting to arbitration. Said mediation shall last a minimum of four hours and the parties agree to share equally in the cost of the mediator.
CONFLICT MINERAL REQUIREMENTS:
Section 1502 of the Dodd-Frank Conflict Minerals requires changes to the Securities Exchange Act of 1934 to include requirements for disclosures relating to conflict minerals originating in the Democratic Republic of the Congo (DRC). Sales of these conflict minerals originating in the DRC and adjoining countries have helped fund armed conflicts that are contributing to human rights abuses. Identifying these minerals and their source will help de-fund the armed groups creating the humanitarian emergency in the DRC. Conflict minerals include Cassiterite (tin, tin alloy, solder), Columbite-Tantalite (Tantalum), and Gold, Woframite (Tungsten).
Seller does not manufacturer any of the products it sells and does not directly purchase conflict minerals from any source. Seller does not knowingly procure any product containing conflict minerals from the conflict region.
INTELLECTUAL PROPERTY:
If any Product includes software or other intellectual property, such software or other intellectual property is provided by Seller to Buyer subject to the copyright and user license, if any, for such Products, the terms and conditions of which are set forth in the license agreement accompanying such Product. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement. Buyer acknowledges and understands that Seller is not the manufacturer of any Products ordered or to be supplied to Buyer and is not liable to Buyer or any third party for any infringement claim or any other intellectual property or trade secret issue, right or claim that may arise in relation to any Product.
TECHNICAL ASSISTANCE OR ADVICE:
Any technical assistance or advice offered by Seller in regard to the use of any Product or provided in connection with Buyer’s purchases is given free of charge and only as an accommodation to Buyer. Seller shall have no obligation to provide any technical assistance or advice to Buyer and if any such assistance or advice is provided, such fact will not obligate Seller to provide any further or additional assistance or advice. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products constitute a representation or warranty, express or implied.
GENERAL:
The Sale Document and these Terms and Conditions, including exhibits or attachments thereto, if any, represent the entire agreement between Buyer and Seller with respect to sales hereunder, and supersede all prior understandings, written or oral. Buyer and Seller agree that each provision contained in these Terms and Conditions shall be treated as separate and independent clauses, and the unenforceability of any one clause shall in no way impair the enforceability of any other clause. Any waiver of any provision herein or any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. Seller is not liable for its failure to perform any of its obligations hereunder during any period in which performance is delayed by Buyer or circumstances beyond Seller’s reasonable control, including, without limitation, an act of God, war, civil disturbance, court order, labor dispute, third party nonperformance (including carrier delays) , acts of third parties, or failures, fluctuations or nonavailability of materials, components, electrical power, heat, light, air conditioning, computing or information systems or telecommunications. If Seller is the prevailing party in any legal proceedings brought by or against Buyer to enforce any provision of this agreement, Seller shall be entitled to recover against Buyer the reasonable attorneys’ fees, court costs and other expenses incurred by Seller. Neither party may assign this agreement without the prior written approval of the other party.
MODIFICATION OF AGREEMENT:
No changes, modifications, or amendments may be made to this agreement without written authorization by an executive officer of Seller before become binding on Seller.
ENTIRE AGREEMENT:
These terms and conditions contain the complete and entire agreement between the parties with respect to the subject matter of this transaction. No other purchase order or other Customer document will be deemed an offer or counter-offer and any such document is specifically rejected. Seller’s failure to object to any document, communication or act of Customer will not be deemed a waiver of any of these terms and conditions. Any addition or change to these terms and conditions must be specifically agreed to in writing by a duly authorized officer of Seller before becoming binding on Seller.
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PRIVACY:
Buyer’s privacy is important to Seller. Accordingly, Seller has developed a privacy policy regarding information that Buyer provides to Seller online (if any). A copy of Seller’s privacy policy may be obtained from Seller’s website.
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CONFIDENTIALITY:
Seller will treat information obtained or created during performance of Service as proprietary and confidential unless Buyer makes it publicly available and will notify Buyer before releasing it into the public domain or to another party.
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