Terms and Conditions
RAYLAND INDUSTRIES, LLC – GENERAL TERMS AND CONDITIONS
Definitions.
“Rayland” means Rayland Industries, LLC.
“Client” means a person or company that submits a written order (a “Purchase Order,” or “PO”) or who receives and accepts an Rayland estimate.
Rayland and the Client are sometimes referred to in these General Terms and Conditions jointly as the “Parties” and severally as a “Party.”
References herein to “Project” mean the Services and Products as defined in Rayland’s written proposal(s) to Client.
Formation of Contract; Purchase Order; Acceptance. A binding, non-cancellable contract (an “Accepted Order”) is formed when the following events occur:
Rayland issues an estimate to Client or a Client submits a PO to Rayland;
Client accepts Rayland’s quotation in writing or Rayland accepts the Client’s PO in writing; and
these General Terms and Conditions are included as part of the Accepted Order.
Rayland’s agreement to perform the services and/or provide the Products specified in the Accepted Order is expressly conditioned upon acceptance of these General Terms and Conditions. Rayland hereby objects to any additional or different terms and conditions contained in the Client’s PO, none of which shall be binding upon Rayland unless specifically agreed to in writing signed by an authorized representative of Rayland. Upon delivery of Products and Services to Client, all sales are FINAL. No Returns will be accepted unless agreed in writing by authorized parties of Rayland. Failure by Rayland to object to a specific provision contained in Client’s PO shall not in any way be deemed an alteration to or waiver of any one of these General Terms and Conditions. Rayland’s acceptance of the Client’s PO can be made only by written Acceptance. In the event of a conflict between a provision of these General Terms and Conditions and the Accepted Order, the provision in the Accepted Order shall take precedence.
Prices & Shipments. All shipments are EXW Rayland’s shipping point, where title and risk of loss will pass from Rayland to Client. Payment will be in US Dollars. Client is responsible for all costs of transport and insurance unless Client requests that such items be included as part of the Purchase Order and Rayland accepts. Prices do not include any goods, services, data, documentation, proprietary rights, installation assistance, or testing that are not specifically stated in the Accepted Order. Prices are valid for thirty (30) days from the date on a quotation unless otherwise stated on the face of the quotation. Upon the expiration of such period, Rayland reserves the right to modify the proposed basis of payment and fees to allow for changing costs and to adjust the time of performance to conform to changing workloads.
Legal Compliance, Taxes & Other Charges. The Parties agree to comply with all applicable laws, rules, and regulations. Unless otherwise stated in the Accepted Order, Client is responsible for the ultimate payment of all federal, state, local, foreign or provincial, present or future, sales, revenue, or excise tax, value added tax, turnover tax, import duty (including brokerage fees) or other tax, however characterized, applicable to the manufacture or sale of any Product (“Sales Taxes”). The prices for Products do not include Sales Taxes, which will be added to the sales price where Rayland has a legal obligation to collect them. If Client is exempt, Client shall provide Rayland with the documentation necessary to support such a claim and to allow Rayland to document its decision not to collect such Tax.
Cost Estimates. Unless Rayland’s proposal provides otherwise, the proposed fees constitute Rayland’s estimate of the probable cost required to complete the proposed Project. Unless expressly stated, the estimated probable cost identified in Rayland’s proposal shall not be deemed to be either a guaranteed maximum or a “guaranteed not-to-exceed” amount with respect to the cost of performing the Project identified in any such proposal. However, in performing any Project, Rayland will not incur costs greater than the amount identified as the estimated probable cost in Rayland’s proposal without Client’s prior, written approval.
Changes. Thirty (30) days or more prior to the scheduled initial shipment date Client may request changes to an Accepted Order and Rayland will quote the changes in price, time of delivery, or other terms that may result from the requested change. The proposed change shall not become effective unless and until Client issues a PO recording the change and Rayland has confirmed its acceptance in writing. No change will be accepted if it would result in (i) a delay of the Accepted Order’s initial shipment by more than six (6) months of the date specified in the PO, or (ii) the Accepted Order’s not being completed, with all shipments made, within one (1) year from the date of the Accepted Order.
Delivery Dates. Rayland will make reasonable commercial efforts to meet the delivery date(s) quoted, however, Rayland does not assume liability, consequential or otherwise, because of any delay or failure to deliver all or part of an order for any reason. If Rayland needs information, sample material, or documentation from Client in order to manufacture the Products, then all delivery dates are predicated upon prompt and timely receipt from Client of the necessary information, sample material, documentation etc.
Acceptance of Products.
Unless the Parties agree in advance on a written acceptance test, Client agrees to accept the Products upon delivery to the EXW location. Within seven (7) business days of delivery to the EXW location, Client must inspect the Products and notify Rayland by e-mail of any obvious physical defects, or quantity under ages or overages. Acceptance, however, does not affect Client’s warranty rights under Section 16 as set forth below.
Client agrees that it has had the opportunity to examine any specifications or product information that it has requested from Rayland. Client agrees that based on this evaluation it has decided that the Products will be merchantable and adequate for the purpose intended by Client, and Client is not relying on any superior knowledge of Rayland.
Force Majeure. Cost and schedule commitments contained in Rayland’s proposal shall be subject to renegotiation for unreasonable delays caused by Client’s failure to provide information or for delays caused by unpredictable occurrences such as fires, floods, strikes, riots, unavailability of labor or materials or services, process shutdown, acts of God or of the public enemy, or acts or regulations of any governmental agency. Work stoppage or interruption caused by any of the above may result in additional cost (requiring a change in scope) beyond that identified in Rayland’s proposal for performance of the Project, entitling Rayland to an adjustment to the cost and schedule.
Security Interest (Equitable Charge). Client agrees that Rayland will retain a security interest (or “equitable charge”) in the Products and any proceeds thereof to secure any portion of the purchase price not paid, and Client will, on request, execute a security agreement in such form as is required by Rayland. Rayland shall have all rights and remedies accorded by law or equity to a secured creditor, including the right to enter upon the premises where the Products are located for purposes of removing or rendering them inoperative, and all such rights and remedies shall be cumulative. Client shall maintain insurance against all risks to cover full replacement value of the Products until Rayland has been paid in full.
Invoices. Unless specified otherwise, invoices will be submitted on a monthly basis payable upon receipt. Unpaid balances shall be subject to interest at the rate of one and one-half percent (1.5%) per month or the maximum permissible under state law, whichever is less, starting thirty (30) days from the invoice date. Payments received will be applied first to any accrued interest, with the balance of the payment then applied to any unpaid fees. In addition, Rayland may, after giving seven (7) days written notice, suspend services under any agreement without liability until all past due accounts (including fees and accrued interest) have been paid. Timely payment is a substantial condition of Client’s performance of any agreement between Rayland and Client. In the event Rayland must take legal action to be paid for its services and prevails, all collection and legal costs associated with such action shall be reimbursed by Client.
Termination. Any agreement between Rayland and Client may be terminated, in whole or in part, in writing by either party, in the event of substantial or material failure by the other party to fulfill its obligations under such agreement through no fault of the terminating party, provided that no such termination shall be effective unless the other party is given; (i) not less than ten (10) calendar days written notice of intent to terminate; and (ii) an opportunity for consultation with the terminating party prior to the effective date of such termination. A final invoice will be calculated following the effective date of termination.
Intellectual Property.
Rayland retains its intellectual property, and the sale of any Products hereunder does not convey any license by implication, estoppel, or otherwise covering any Rayland patent, copyright, trade secret, Specification, design, know how, or other intellectual property.
Rayland has no liability for any claim based upon the
combination, operation or use of any Product supplied hereunder with equipment, devices, or software not supplied by Rayland;
modification or alteration of any Product supplied hereunder; or
Rayland’s compliance with Client’s designs, specifications, or instructions.
The foregoing states the entire obligation of Rayland with respect to infringement or the like.
Client shall at its own cost and expense defend and hold Rayland harmless against any expense, judgment or loss for alleged infringement of any claim of a patent which results from Rayland’s compliance with Client’s designs, specifications, or instructions.
Unless otherwise specified, Rayland retains for itself all proprietary rights in and to all designs, engineering details, and other data and materials pertaining to all goods supplied by Rayland and to all discoveries, inventions, patents, and other proprietary rights arising out of the work done in connection with the Products or with any and all Products developed as a result thereof, including the sole right to manufacture any such Products. Client warrants that it will not divulge, disclose or in any way distribute, or make use of such information, and that it will not reverse-engineer, manufacture, or engage to have manufactured such Products. Client warrants that it has all right, title and interest in all products, drawings, designs, documents and specifications that it provides to Rayland and its parent, subsidiaries and affiliates for Rayland’s use in providing Products for Client. Client shall at its own cost and expense, indemnify, defend and hold Rayland harmless from and against any breach of the foregoing warranty.
Computer software provided in connection with an Approved Order, including any subsequent improvements or updates, is furnished to Client in object code only under a nonexclusive, nontransferable license solely for Client’s own use with a single system on which the software was first installed. The software may be copied only as may be necessary and incidental for use on such systems, for archival and backup purposes, or to replace a worn or defective copy; provided that all such copies always include Rayland’s copyright and other proprietary notices on the software. Client shall not:
market, commercialize, sublicense, or otherwise provide or make available the software or any part thereof in any form to any third party; or
reverse engineer, reverse compile, or reverse assemble the firmware or software in whole or in part or do anything to produce source code.
Rayland has the right to terminate the software license if Client fails to cure any breach of these license terms within thirty (30) days after written notice from Rayland. Client agrees, upon termination of the license, to immediately return or destroy the software and all portions and copies thereof, as requested by Rayland.
Indemnification.
Client shall indemnify and hold harmless the Rayland Parties from and against all liability, claims, suits, losses, damages, costs and demands, including reasonable legal expenses and attorney’s fees connected therewith, on account of personal injury, death, or property damage, sustained by any person or entity not a party to any agreement between Rayland and Client and arising out of or connected with the performance of such agreement, to the extent such injury, death, or damage is caused by the sole or contributory negligence or willful misconduct of Client Parties.
The provisions of this Paragraph shall survive the completion of the Project or the expiration, cancellation or termination of any agreement between Rayland and Client.
Rayland Warranties.
Rayland represents and warrants that
its services will be performed in a professional, timely, and competent manner in accordance with accepted industry standards;
as delivered to Client, the services will not infringe any copyright, patent, trade secret, or other proprietary right held by any third party;
Rayland will comply with all applicable local, state, and federal laws related to the performance of its work; and
its Products will be free from defects in materials and workmanship and will conform to the specifications for a period of one (1) year from the date of shipment of the Products to the EXW location.
Rayland agrees to re-perform and correct at its expense any work or services performed by Rayland that is determined by Rayland to have a defect in materials and/or workmanship that makes it not in compliance with the specifications. This warranty is void if the Product is damaged by misuse, mishandling, disassembly, improper installation, use with components with which it is not compatible, neglect, accident, modification, contamination, or testing or handling by any party not under the direct control of Rayland. "Misuse" includes both the use of Rayland Products with incompatible third-party products resulting in damage to the Rayland Product, and also exposure to temperatures, pressures, humidity or other conditions for which it was not designed, as set forth in the specifications. Client is responsible for any shipping and handling charges for returning Products for repairs. Rayland is responsible for charges for shipping Products repaired under warranty back to Client. Rayland will choose the carrier and level of service. Client is responsible for repair charges and all shipping charges for repairs determined by Rayland to be non-warranty repairs. All repairs are warranted for a period of 90 days or the remainder of the original warranty period, whichever is longer, for the repaired portion of the Product. Rayland’s sole liability for any use of its Products, regardless of the operating condition of such Products, is limited to repair or replacement of the Product. Client holds harmless and indemnifies Rayland from any and all other claims resulting from the use of Rayland Products. The benefit of this Warranty shall apply only to Client. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. RAYLAND DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS.
Estimates of cost, approvals, recommendations, opinions, and decisions by Rayland are made on the basis of Rayland’s experience, qualifications, and professional judgment and are not guaranteed. Rayland shall not be regarded as a guarantor with respect to any work product provided to Client
Exclusive Remedies. THE REMEDIES PROVIDED HEREIN ARE CLIENT'S SOLE AND EXCLUSIVE REMEDIES. NEITHER RAYLAND NOR CLIENT SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST BUSINESS OPPORTUNITY, INCLUDING LOSS OF REVENUES OR LOSS OF PROFITS, LOSS BY REASON OF SHUTDOWN, LOSS OF CAPITAL, LOSS OF PRODUCT, OR LOSS OF USE, WHETHER BASED ON WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY), IN TORT (INCLUDING NEGLIGENCE AND NEGLIGENT MISREPRESENTATION, WHETHER OF RAYLAND OR OTHERS), IN STRICT LIABILITY, OR OTHERWISE, FOR ANY AND ALL INJURIES, CLAIMS, LOSSES, EXPENSES OR DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO RAYLAND’S SERVICES FROM ANY CAUSE OR CAUSES WHATSOEVER, EVEN IF RAYLAND HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSSES. IN NO EVENT SHALL RAYLAND’S LIABILITY EXCEED THE AMOUNT THAT HAS THEN BEEN PAID TO RAYLAND BY CLIENT FOR THE SPECIFIED PRODUCTS UNDER THE PO IN QUESTION. RAYLAND NEITHER ASSUMES NOR AUTHORIZES ANY AGENT, EMPLOYEE, REPRESENTATIVE, OR ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION, SERVICE OR USE OF ITS PRODUCTS. CLIENT HEREBY FOREVER RELEASES RAYLAND AND ITS OFFICERS, PRINCIPALS, EMPLOYEES, AFFILIATES, AND AGENTS FROM ANY LIABILITY FOR LOSSES OR DAMAGES SUSTAINED AND INCURRED BY CLIENT IN EXCESS OF SUCH AMOUNT. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE COMPLETION OF THE PROJECT OR THE EXPIRATION, CANCELLATION, OR TERMINATION OF ANY AGREEMENT BETWEEN RAYLAND AND CLIENT, AND SUCH PROVISIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
Independent Contractor. Rayland’s performance is that of an independent contractor. Nothing shall create the relationship of employer and employee, partnership, principle and agent, or joint venture between Client and Rayland. Neither Party has any right or authority to enter into or incur any debt or liability, of any nature, in the name of, or on behalf of, the other Party.
Use of Confidential Information.
Each Party acknowledges that during the engagement the other Party may have access to and become acquainted with confidential or proprietary information owned, licensed, or used by such Party, whether furnished before or after the initiation of the Project. “Confidential Information” includes, without limitation, analytical data, business plans, training materials, marketing plans, identity of customers and other customer-related data, trade secrets, technical data, financial data, test or evaluation results, system concepts, drawings, models, product and process designs, product and process specifications, information pertaining to a Party and Party’s officers, employees, affiliates, and agents, and other commercial information, whether or not patented or copyrighted. Each Party agrees that it will:
hold the Confidential Information in strict confidence;
not disclose Confidential Information to any third party; and
not use the Confidential Information in any manner, either during or after the term of this Agreement, except as required in the course of this engagement.
Upon request of a Party at any time or upon termination of this Agreement, the other Party shall:
promptly return (or destroy and certify the completed destruction of) all copies of the Confidential Information and all copies of all files, records, documents, and other items containing Confidential Information in Rayland’s possession or under such Party’s control; and
promptly remove all traces of the Confidential Information from such Party’s system and storage.
Neither Party shall publish or permit the publication of, in any manner or media, the existence or terms of this Agreement, any actual or potential business relationship between the Parties, or the logos or any other intellectual property of the other Party, its affiliates, or its customers, without express, written permission.
Dispute Resolution. This dispute resolution procedure applies to all disputes arising under this Agreement. Rayland and Client shall make good faith efforts to meet and to resolve all disputes informally. Should these informal attempts fail to resolve the dispute, the courts of Harris County, Texas shall have jurisdiction over any dispute which may be brought in connection with an Accepted Order.
Miscellaneous.
The validity, operation, and performance of this Agreement shall be governed by and interpreted and construed in accordance with the laws of the State of Texas.
Assignment. This Agreement shall not be assigned by either Party except upon the express, written consent of the other Party. However, the Agreement shall be binding on and shall inure to the benefit of the Parties hereto, their successors, and their assigns.
Amendment. This Agreement may be amended only by written agreement, executed by the Parties.
Rights and Benefits of Third Parties. Except as otherwise expressly set forth in Rayland’s proposal, Rayland and Client do not intend, nor will any clause contained herein be interpreted as their intent, to grant to any third party any benefits or rights hereunder, including the right to rely on any work product generated by Rayland.
Effect of Invalid Terms. If any of these General Terms and Conditions shall be finally determined to be invalid or unenforceable in whole or in part, the remaining provisions hereof shall remain in full force and effect and be binding upon the parties. The parties agree to reform the Agreement between them to replace any such invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the intention of the stricken provision.
Entirety of Agreement and Priority of Terms. Once Client has signified its acceptance of Rayland’s proposal, the express terms of Rayland’s proposal to Client and these General Terms and Conditions shall constitute the complete and exclusive statement of the terms of the agreement between the parties and are intended as a final expression of the terms of such agreement and will supersede all prior and contemporaneous agreements, representations or conditions, express or implied, oral or written. No provision of Rayland’s proposal or these General Terms and Conditions may be waived, altered, or modified in any manner, unless the same shall be set forth in writing and signed by a duly authorized officer of Rayland. Client may use its standard business forms (such as purchase orders) to administer any agreement between Rayland and Client, but the use of such forms shall be for convenience purposes only, and any typed provision in conflict with the terms of Rayland’s proposal or these General Terms and Conditions and all pre-printed terms and conditions contained in or on such forms shall be deemed stricken and null and void.
Non-waiver. A Party's waiver, failure to insist on performance of any of the terms or conditions herein, or failure to exercise any right or privilege that such Party has under these Terms shall not thereafter be considered a waiver of that or any other terms, conditions or privileges, whether of the same or similar type.