privacy policy

STANDARD TERMS AND CONDITIONS OF SALES

 

1. AGREEMENT.

These Terms and Conditions of Sale ("Agreement") are the only terms and conditions by which RAI Fabrications, Inc, ("Seller") and the customer ("Buyer") shall be bound, and they supersede all other agreements between the parties (including the terms contained in your Purchase Order, if any). Accordingly, such terms and conditions supersede and neither party places any reliance upon all and any prior representations (not limited to but including all descriptive materials, sales literature, price lists and all other documents issued by RAI Fabrications) and you acknowledge that save as expressly stated hereunder, you have not been induced to enter into this Agreement by any representation whether oral or in writing by us, our employees, servants or agents and you unconditionally waive your rights to claim damages against Seller or seek to rescind this Agreement in reliance on any statement made that is not set out or referred to in these Terms and Conditions.  Seller will not be bound by any terms of Buyer's order that are inconsistent with the terms herein. Acceptance by Buyer of these terms may be made either (a) by written acceptance or (b) by receipt by Buyer of delivery of any products purchased by Buyer ("Products") and failure by Buyer to return the Products within five (5) days following such delivery. The Agreement shall not be modified except in writing, signed by the parties hereto.

2. PRICE.

(a) Prices are subject to change at anytime, except with respect to orders which have been accepted by Seller and outstanding quoted prices which shall be valid for the longer of 10 days or the period specified with the quote. Seller reserves the right to correct errors in pricing due to inaccurate or incomplete information, clerical mistakes or other causes.

(b) The price of all Products unless otherwise specifically stated in this Agreement is F.O.B. Seller facility, which is the address of RAI Fabrications, Inc., exclusive of insurance cost. Unless otherwise noted, all applicable freight charges are not included in the price quotation and will be invoiced as a separate line item.  Where special domestic or export packaging is specified, involving greater expense, a charge will be made to cover such extra expense. Charges will also be assessed to the Buyer for additional handling or redirecting of product at a standard hourly rate or actual charges if performed by a third party. Any additional charges for special packaging, handling, demurrage, storage, delivery options, not provided for in the original agreement between the Seller and Buyer, will be paid by the Buyer.

(c) Prices and orders do not include Federal, State or local excise, sales, use or other taxes now or hereinafter enacted, which are applicable to the Products sold hereunder or this transaction (excluding only taxes based on Seller's income), which tax or taxes will be added by Seller to the sales price when Seller has the legal obligation to collect the same and will be invoiced to and paid by Buyer.  Buyer agrees to pay any and all applicable taxes.

(d) Prices quoted are for the Products and services subject of this Agreement, technical data, proprietary rights of any kind, patent rights, qualification, environmental or other than Seller's standard tests unless expressly agreed to in writing by Seller. (d) Unless otherwise stated by Seller in writing, all quotations are firm for, and expire, thirty (30) days after date thereof and constitute offers.

3. PAYMENT TERMS.

(a) Unless otherwise stated as part of this Agreement, the terms of the sale are net 15 from date of invoice. Buyer shall make all payments in U.S. currency only and in full without any discount, set off or other reductions.  Seller reserves the right to require alternative payment terms, including, without limitation, sight draft, letter of credit, deposit, or payment in advance. All payments shall be made to Seller at its office in Irvine, California, or such other office as may be from time to time designated. Interest accrues on overdue invoices at the rate of one and one-half percent (1 1/2%) per month, but not more than the amount allowed by law, on the unpaid balance from the original due date of the invoice.

(b) A deposit of 50% is required on all initial orders stemming from first time customers of RAI Fabrications, Inc.  A deposit of 50% is required from all aforementioned customers on all subsequent orders greater than $10,000.

(c) All orders are subject to, and the obligation of Seller to make deliveries is subject to, the right of the Seller as provided in paragraph 11, to require of the Buyer payment of all or any part of the purchase price in advance of delivery or to make shipment C.O.D. If the Buyer fails to make advance payment when requested by Seller, or if the Buyer is or becomes delinquent in the payment of any sum due Seller (whether or not arising out of this order) or refuses to accept C.O.D. shipment, then Seller shall have the right, in addition to any other remedy to which it may be entitled in law or equity, to cancel the sales order, refuse to make further deliveries, and declare immediately due and payable all unpaid amounts for goods previously delivered to the Buyer. Partial shipments made under any order shall be treated as a separate transaction and payment thereof shall be made accordingly. However, in the event of any default by Buyer, Seller may decline to make further shipments without in any way affecting its rights under such order.

(d) If at any time Seller deems Buyer's credit unsatisfactory or in any way impaired, Seller reserves the right, among other remedies, to terminate or suspend supplying products or services to Buyer and/or to require payment by cash in advance or payment secured by an irrevocable letter of credit. Upon any default in payment, Buyer shall pay Seller interest on the unpaid balance at the maximum per annum interest rate permitted by law and all costs of collection, including attorneys' fees and expenses. Seller shall have, and Buyer hereby grants to Seller, a purchase money security interest in all products purchased by Buyer and any product proceeds to secure payment of the purchase price and all other amounts due Seller, and Seller shall retain all rights and remedies of a secured party under the Uniform Commercial Code (or under comparable laws outside the United States) including the right to repossess or require Buyer return products for which Seller does not have payment. The Buyer shall pay for all charges associated in returning the products to the Seller.

4. TRANSPORTATION AND RISK OF LOSS.

Unless otherwise agreed to in writing by Seller, all shipping shall be at the expense of Buyer, Seller reserving the right to ship Products freight collect and to select the means of shipping and routing. Seller will insure to full value of the Products or declare full value thereof to the transportation company at the time of delivery and all such freight and insurance costs shall be paid for by the Buyer.  Confiscation or destruction of, or damage to Products shall not release, reduce or in any way affect the liability of Buyer. Notwithstanding any defect or nonconformity, or any other matter, such risk of loss shall remain in Buyer until the Products are returned at Buyer's expense to such place as Seller may designate in writing. Buyer, at its expense, shall fully insure Products against all loss or damage until Seller has been paid in full, or the Products have been returned, for whatever reason, to Seller.

5. SHIPMENT.

Seller will attempt to meet shipment schedules. However, any shipment quotation or forecast on an order acknowledgment is only an estimate of the time required to make shipment and Seller will not assume liability, consequential or otherwise, because of any delay or failure to deliver all or any part of any order for any reason, including its active or passive negligence.  Seller does not guarantee any shipping times.  If for any reason Buyer cannot accept delivery of shipment, after the order has shipped, any and all re-delivery, re-consignment and or storage fees will be paid by the Buyer.

FORCE MAJEURE - Seller shall not be in default of, or liable for any delay or failure of compliance with, this Agreement due to acts of nature and/or acts of God (including but not limited to fire or flood, epidemics, severe weather, wars or riots), public enemy, acts of civil or military authority (including but not limited to any government action), freight embargo, strike, acts or omissions of you or your nominated suppliers, shortage of supplies or materials, or any other cause which is beyond our control, during such happening or event.

6. INSPECTION AND ACCEPTANCE.

The Buyer shall have the right to inspect the goods upon tender of delivery. Failure of the Buyer to inspect the goods and give written notice to the Seller of any alleged defect or nonconformity within twenty-four (24) hours after tender of delivery shall constitute an irrevocable acceptance by Buyer of the goods delivered to him. Use of any such goods by Buyer, its agents, employees or licensees, for any purpose after delivery thereof, shall also constitute acceptance of the goods by Buyer.

Any and all damage must be noted in writing on the freight bill/delivery receipt. It is the responsibility of the Buyer to make sure that no damage has occurred, prior to signing for the shipment.  A packing slip is attached on each shipment and will show the total piece count for the order; the Buyer has the responsibility at the time of shipment delivery to verify the total order count. Once Buyer signs the delivery receipt, the shipment becomes the Buyer's property. Upon receipt of order, Buyer must notify Seller of any discrepancies within 24 hours from receipt of the shipment. Failure to do so will hold Seller harmless of any claims.  If apparent/visual damage should occur, it must be noted on the freight bill or delivery receipt and signed by the carrier's agent, failure to do this will result in the carrier refusing to honor the claim.  If excessive damaged has occurred the merchandise should be refused upon original delivery attempt. Please save any damaged product, and the original box and packaging and notify RAI Fabrications, Inc., within 24 hours of receipt of shipment.

7. RETURNS.

The Products may not be returned to Seller without first obtaining Seller's consent. The request for return and credit must be filed with Seller and shall include purchase order number, approximate date shipped and any and all other identifying numbers (such as invoice number, date of invoice, P.O. numbers, etc.). Each request for return of Products for credit should state the type and quantity of goods, the part numbers and the reasons for the return. Any items returned without prior authorization may be refused by Seller and returned to the Buyer at Buyer's expense. If return authorization is granted, Products shall be returned in a clean, well packaged condition. No credit allowance on defectives will be made and no replacement for defectives will be shipped in any event, unless the alleged defectives are, among other things, established to Seller's satisfaction after suitable testing and inspection by Seller. All items returned must be in a saleable condition.  Merchandise must be in its original box.  Merchandise must be unused.  All merchandise not meeting the above criteria will be refused or returned to the Buyer at the Buyer's own expense.

If Buyer receives defective parts, Buyer may return the item(s) in original re-saleable condition, in the original unopened packaging for a refund within five (5) days of the original purchase date.  Buyer will be credited (less a 20% restocking fee and all shipping charges incurred) upon arrival, and inspection of the item(s) Seller warehouse.  The shipping charges and insurance to return the item(s) to Seller will be paid by Buyer. 

8. TERMINATIONS.

Any purchase order for a Product with a published price accepted by Seller and terminated by Buyer at least ten (10) days prior to shipment, shall be subject to a restocking charge of ten percent (10%) of the order value to cover costs of processing and order handlings. Termination of any order for a Product with a published price accepted by Seller within ten (10) days before shipment shall be subject to a written acceptance by Seller and restocking charge of fifteen percent (15%) of the order value. Orders for nonstandard products or products without a published price may not be terminated by Buyer except by mutual agreement in writing. Terminations by mutual agreement are subject to the following conditions: (a) Buyer will pay, at applicable contract prices, for all Products which are completely manufactured and allocable to Buyer at the time of Seller's receipt of notice of termination; (b) Buyer will pay all costs, direct and indirect, which have been incurred by Seller with regard to Products which have not been completely manufactured at the time of Seller's receipt of notice of termination, plus a pro rata portion of the normal profit on the contract; (c) Buyer will pay a termination charge on all other Products affected by the termination. Seller's normal accounting practices shall be used to determine costs and other charges. In the event of a termination, Buyer will have no rights in partially completed goods.

9. LIMITED WARRANTY -  LIMITATION OF REMEDIES.

(a) Except as otherwise specified herein, Seller warrants the Products: to be free from defects in material and workmanship, which does not include product paint and/or finish, and to perform in the manner and under the conditions as specified by Seller for a period of forty-five (45) days from delivery.

(b) This warranty is the only warranty made by Seller with respect to the Products and no representative or person is authorized to bind Seller for any obligations or liabilities beyond the warranty in connection with the sale of Seller's goods. This warranty is made to the original purchaser only at the original location and is nontransferable, and may only be modified or amended by a written instrument signed by a duly authorized officer of Seller. Goods or parts which are replaced or repaired under this warranty are warranted only for the remaining unexpired portion of the original warranty period applicable to the specific product.

(c) These remedies are available only if Seller is notified in writing by Buyer promptly upon discovery of the defect, and in any event within the warranty period for Product and Seller's examination of such goods discloses to Seller's satisfaction that such defects actually exist and the goods have not been (i) repaired, worked on, or altered by persons not authorized by Seller so as, in Seller's sole judgment, to injure the stability reliability, or proper operation of such goods; (ii) subject to misuse, negligence or accident; or (iii) connected, installed, used or adjusted otherwise that in accordance with the instructions furnished by Seller.

(d) All Products which Buyer considers defective shall be returned to Seller's office as designated on the face hereof transportation costs prepaid and borne by Buyer, unless otherwise provided. The risk of loss of the goods shipped or delivered to Seller for repair or replacement will be borne by Buyer.

(e) If it is found that any Product has been returned without cause and is still serviceable, Buyer will be notified and the Product returned at Buyer's expense. In addition, a charge for testing and examination may, in Seller's sole discretion, be made on Products so returned.

(f) THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (EXCEPT FOR SPECIFIC WRITTEN PRODUCT PERFORMANCE GUARANTEES) WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SHALL BE THE BUYER'S SOLE REMEDY AND SELLER'S SOLE LIABILITY ON CONTRACT OR WARRANTY OR OTHERWISE FOR THE PRODUCT.

10. SELLER'S RIGHTS TO SUBCONTRACT.

Seller may subcontract any portion of the work on any item subject to this Agreement, but Seller's obligations and rights hereunder shall not be limited or affected thereby.

11. BANKRUPTCY OR INSOLVENCY OF BUYER.

If the financial conditions of the Buyer at any time is such as to give Seller, in its judgment, reasonable grounds for insecurity concerning Buyer's ability to perform its obligations under this agreement. Seller may (a) by notice in writing to Buyer, cancel this agreement, without judicial intervention or declaration of default of Buyer and without prejudice to any right or remedy which may have accrued or may accrue thereafter to Seller, (b) require full or partial payment in advance and suspend any further deliveries for continuance of the work to be performed by Seller until such payment has been received or (c) make shipments C.O.D.

12. CONFIDENTIALITY

Except with Seller written consent or as required by law, Buyer shall not use or disclose to any other person any information relating to the Goods or Services or to this Agreement, where such information is indicated by Seller either expressly or by implication as being confidential, except to Buyer's employees obligated to hold such information and to whom disclosure is necessary. 

13. PROPRIETARY RIGHTS.

The sale of the Products hereunder to Buyer shall in no way be deemed to confer upon Buyer any right, interest or license in any patents or patent applications or design copyrights the Seller may have covering the Products. Seller retains for itself all proprietary rights in and to all designs, engineering details, and other data and materials pertaining to any Products supplied by Seller and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by Seller in connection with the Products or with any and all Products developed by Seller as a result thereof, including the sole right to manufacture any and all such Products. Buyer warrants that it will NOT divulge, disclose, or in any way distribute or make use of such information to anyone outside its company, including but not limited to any or RAI Fabrications competitors, and that the Buyer will not manufacture or engage to have manufactured such Products.

14. ERRORS.

Stenographic and clerical errors are subject to correction.

15. APPLICABLE LAW; DISPUTE RESOLUTION/ARBITRATION AND VENUE.

The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) against RAI Fabrications, Inc, its agents, employees, successors, assigns or affiliates arising out of or relating to this Agreements, or any related purchase (a ?Dispute?) through face to face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration in accordance with the then current CPR Rules for Non-Administered Arbitration.  The arbitration hearing shall take place in Los Angeles and will be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws. Each party will bear its own cost of any legal representation, discovery or research required to complete arbitration. The arbitrators shall base their award on the terms of this Agreement, and will follow the law and judicial precedents that a United States District Judge sitting in the Southern District of California would apply to the Dispute.  The venue over any dispute arising out of this agreement will be in the California state courts of Orange County, California, and the Buyer hereby consents to the jurisdiction of such courts. The arbitrators shall render their award in writing and will include the findings of fact and conclusion of law upon which their award is based.  Judgment upon the arbitration award may be entered by any court of competent jurisdiction.  The existence or results of any negotiation, mediation or arbitration will be treated as confidential.  Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this paragraph.

16. LIMITATION OF LIABILITY.

(a) Seller will not be liable for any loss, damages or penalty resulting from delay in delivery of the Products when such delay is due to causes beyond the reasonable control of Seller, including without limitation, supplier delay, force majeure, act of God, labor unrest, fire, explosion or earthquake. In any such event, the delivery date will be deemed extended for a period equal to the delay.

(b) SELLER'S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THIS AGREEMENT AND/OR SALE WILL BE LIMITED TO REPAIR OR REPLACEMENT OF ANY DEFECTIVE PRODUCTS OR A REFUND OF THE PURCHASE PRICE OF THE PRODUCTS, AT SELLER'S SOLE OPTION, AS SET FORTH IN PARAGRAPH 9 ABOVE. IN NO EVENT WILL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTED PRODUCTS BY BUYER, NOR WILL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF PROFIT WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST BUYER. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF SELLER ARISING OUT OF THIS AGREEMENT AND/OR SALE.

17. SUBSTITUTIONS AND MODIFICATIONS.

Seller will have the right to make substitutions and modifications of the specifications of Products sold by Seller, provided that such substitutions or modifications will not materially affect overall Product performance.

18. ATTORNEY'S FEES AND COSTS.

Reasonable attorney's fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this agreement.

19. WAIVER.

Any concession or indulgence made by the Seller or Seller's failure to insist on performance of any of the terms and conditions hereto shall not be considered a waiver of any other term, whether the same or similar. No waiver by Seller of any default or provision hereof shall be deemed a waiver of any subsequent default or provision.

20.  INDEMNIFICATION.

Buyer shall defend, indemnify and hold RAI Fabrications, Inc., its subsidiaries and affiliates, their officers, directors, employees, and agents harmless from and against any claims, actions or demands, liabilities and settlements, including, without limitation, reasonable attorney and accounting fees, resulting from, or alleged to result from Buyer's use of the Product.

 

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