Raycon Technology, designated below as Seller, accepts and will
fill orders only upon the terms and conditions appearing below. |
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| 1. |
ENTIRE AGREEMENT: Any of the terms and provisions of Buyer's order
which are inconsistent with the terms and provisions hereof shall
not be binding on Raycon Technology and shall not be considered
applicable to the sale of the products mentioned herein. Unless
Buyer shall notify Raycon Technology in writing to the contrary
within ten (10) days after receipt of this form, acceptance by Buyer
of these terms and conditions shall be inferred and, in the absence
of such notification, the shipment by Raycon Technology of the products
covered hereby shall be conclusively deemed to be subject to the
terms and conditions hereof. No modification hereof shall be valid
unless in writing and duly signed by a person authorized by Raycon
Technology.
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| 2. |
PRICES:
Prices are subject to change without notice and adjustment to Raycon
Technology's prices in effect at time of order placement. Unless
otherwise specified on the order, prices are for the specific quantity
stated and do not include taxes nor charges for transportation,
handling, engineering documents, tooling, special packaging, marking
or testing.
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| 3. |
VARIATION IN QUANTITY: Normal manufacturing processing variation
of total order quantity per item is plus 2% minus 5%. Buyer agrees
to accept and pay for overages up to 2% of item order quantities.
Orders with shipments of 95% or more of the order quantity shall
be considered complete and the Buyer shall be invoiced for the actual
quantity shipped.
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| 4. |
MINIMUM ORDER: $100 per Order unless otherwise specified.
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| 5. |
QUANTITY
DISCOUNTS: When quantity price discounts are quoted, they are computed
separately for each type of product or equipment, and are based
on the quantity of each type and each size ordered at any one time
for immediate delivery. If any order is reduced or canceled, it
is agreed that prices will be adjusted upward to the higher prices,
if applicable, for the uncancelled quantity.
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| 6. |
ORDER
SCHEDULING: Orders are to be scheduled for delivery within 12 months
from order date. Products containing precious or volatile price
materials are priced for shipment within 6 months after order date
and thereafter are subject to price adjustment to the then prevailing
prices. Subject to the above time restrictions, one reschedule per
order will be allowed at no charge and a $25.00 charge shall apply
to each schedule change thereafter.
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| 7. |
ADD-ON QUANTITIES: Change orders or additional orders for identical
items received within 7 days of the original order may be combined
for quantity price advantage, if any.
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| 8. |
QUALITY LEVEL: Prices are based on quality levels commensurate with
normal processing. If a different quality level is required, Buyer
must specify his requirements and pay any additional costs that
may be applicable.
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| 9. |
TAXES: Unless prohibited by statute, Buyer agrees to pay Raycon
Technology the amount of any Federal, State, City, or other tax,
import or export duty, tariff or customs charge levied by any jurisdiction
either inside or outside of the United States which Raycon Technology
may be required to pay on account of the ownership at the place
of installation, or the manufacture, transportation, sale or use
of the material and equipment which is the subject of this contract.
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| 10. |
TERMS:
Unless otherwise stated, payment terms are net 30 days from date
of invoice, subject to approval by Raycon Technology of amount and
terms of credit. Pending correction of any objectionable credit
situation, Raycon Technology may withhold shipments without incurring
any liability to Buyer. When partial shipments are made, payments
therefore shall become due in accordance with the designated terms
of the invoice. If, at the request of Buyer, shipment is postponed
for more than 30 days, payment will become due 30 days after notice
to Buyer that products are ready for shipment. A service charge
of 1 ½% per month on the unpaid balance shall be imposed
on all accounts not paid when due.
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| 11. |
SHIPMENT:
All shipments will be made F.O.B. the Raycon Technology factory
unless otherwise specified. In the absence of specific instructions,
Raycon Technology will select the carrier. Title to the material
shall pass to the Buyer upon delivery thereof by Raycon Technology
to the carrier or delivery service. Thereupon, the Buyer shall be
responsible thereafter. Products held for Buyer, or stored for Buyer,
shall be at the risk and expense of Buyer. Claims against Raycon
Technology for shortages must be made within 10 days after arrival
of shipment.
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| 12. |
DELIVERY: Raycon Technology acknowledged shipping dates are approximate.
If Buyer's order does not cite desired delivery dates(s) and/or
does not expressly prohibit delivery in advance of schedule date(s),
Buyer agrees that immediate delivery is acceptable. If conditions
arise which prevent compliance with delivery schedules, Raycon Technology
shall not be liable for any damage, general, consequential or otherwise,
for delay in delivery, or for failure to give notice of delay, and
such delay shall not constitute grounds for cancellation. Without
limiting the generality of the foregoing, Raycon Technology shall
under no circumstances be responsible for failure to fill any orders
when due to failure to obtain export licenses, fires, floods, earthquakes,
riots, strikes, freight embargoes or transportation delays, shortage
or labor, inability to secure fuel, material supplies or power or
other energy requirements or on account of shortages thereof; acts
of God or of the public enemy, any existing or future laws or acts
of the Federal or of any State Government (including specifically,
but not exclusively, any orders, rules or regulations issued by
any official of any such government) affecting the conduct of Raycon
Technology's business which Raycon Technology in its judgment and
discretion deems it advisable to comply with either as a legal or
patriotic duty, or to any other cause beyond Raycon Technology's
reasonable control.
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| 13. |
ENERGY: The price, specifications and delivery schedules set forth
in this order assume that materials and energy will continue to
be available at not less than present levels. And that Raycon Technology
and its subcontractors and suppliers will continue to have any of
the foregoing as a direct or indirect result of the situation commonly
known as the "Energy Crisis," whether resulting from Governmental
action or otherwise, shall render this order subject to equitable
adjustment as to delivery to reflect the impact thereof, to the
extent that any such reduction has a material effect on Raycon Technology's
costs, the price will be subject to equitable adjustment.
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| 14. |
INSPECTION AND ACCEPTANCE: Unless Buyer notifies Raycon Technology
in writing within 30 days from the date of shipment of any products
that said products are rejected, they will be deemed to have been
accepted by Buyer. In order for the notice of rejection to be effective,
it must also specify the reason(s) why the products are being rejected.
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| 15. |
PRODUCT WARRANTY:
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A. |
Warranty:
Raycon Technology warrants that at the time of shipment the products
manufactured by Raycon Technology and sold thereunder will be free
from defects in material and workmanship, and will conform to the
specifications furnished by or approved by Raycon Technology.
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B. |
Warranty adjustment:
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(1) |
If
any defect within this warranty appears, Buyer shall notify Raycon
Technology immediately.
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(2) |
Raycon
Technology agrees to repair or furnish a replacement for, but not
install, any product, which within ninety (90) days from the date
of shipment by Raycon Technology shall, upon test and examination
by Raycon Technology, prove defective within the above warranty.
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(3) |
No product
will be accepted for return or replacement without prior written
authorization of Raycon Technology. Upon such authorization, and
in accordance with instructions by Raycon Technology, the product
will be returned and shipping charges prepaid by Buyer. Replacements
made under this warranty will be shipped prepaid.
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C. |
Exclusions from Warranty:
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(1) |
THE
FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER EXPRESSED
OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS, OR OTHERWISE.
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(2) |
Components
purchased by Buyer from any supplier other than Raycon Technology
shall bear only the warranty given by the manufacturer of the products,
and Raycon Technology assumes no responsibility for the interface
of its product with any other product.
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(3) |
RAYCON TECHNOLOGY
WILL NOT BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR
LOSS, DAMAGES, OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM THE
USE OF THE PRODUCTS OR ANY INABILITY TO USE THEM EITHER SEPARATELY
OR IN COMBINATION WITH ANY OTHER EQUIPMENT OR MATERIAL OR FROM ANY
OTHER CAUSE.
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(4) |
The warranty
does not extend to any product manufactured by Raycon Technology,
which has been subjected to misuse, neglect, accident, improper
handling or installation, or to use in violation of instructions
furnished by Raycon Technology.
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(5) |
The warranty
does not extend to or apply to any unit, which has been repaired
or altered at any place other than at Raycon Technology's factory
or by persons not expressly approved by Raycon Technology.
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| 16. |
RETURNED MATERIAL POLICY
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A. |
Returned material authorization: No product may be returned to Raycon
Technology without prior written authorization from Raycon Technology
in the form of an RMA (Returned Material Authorization form). Raycon
Technology's RMA number must appear on the outside of all shipping
cartons.
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B. |
Returned material time limits: Raycon Technology will not accept
return of any product outside ninety (90) days from Buyer's receipt
of product. All sales after a period of ninety (90) days are considered
final and nonreturnable.
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C. |
Special
"NCNR" product: Any product that is identified as "NCNR"
(Non-Cancelable, Non- Returnable) on the original Raycon Technology
quotation will be considered a Special Item which is not returnable
to Raycon Technology at any time, provided that it is free from
defects in material and workmanship.
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D. |
Trade
Credit: Raycon Technology will apply a trade credit to a customer's
account for all returned material. Raycon will not issue payment
for returned material.
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| 17. |
PATENT INDEMNITY:
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A. |
Patent indemnity by Raycon Technology to Buyer: Raycon Technology
agrees to indemnify and hold harmless the Buyer from and against
all legal expenses which may be incurred as well as damages and
costs (except all consequential and special damages and costs) which
may be finally assessed against the Buyer in any action for infringement
of any United States Letters Patent by the items delivered to Buyer
thereunder; provided that the Buyer shall give Raycon Technology
prompt written notice of any action, claim or threat of patent infringement
suit, either oral or written, or of the commencement of any patent
infringement suit, either oral or written, or of the commencement
of any patent infringement suit against Buyer relating to items
sold by Raycon Technology to Buyer thereunder; and provided Buyer
shall claim, action, or suit through counsel of Raycon Technology's
own choice and under its sole direction and at its sole expense,
and provided that in the event Raycon Technology elects to take
over, defend or settle same, Buyer will make available to Raycon
Technology all defenses against any such claim, action, suit or
proceeding known to or available to Buyer; and provided further
that Raycon Technology shall have the right to substitute any such
item or any part thereof claiming to infringe the patent rights
of others, non-infringing items which will give equally good service.
If the use of any such item or any part thereof should be enjoined,
Raycon Technology shall have the right at its own expense to take
any of the following courses of action:
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(1) |
To procure
for Buyer the right to continue using such item; or |
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(2) |
To replace
said item with a non-infringing item; or |
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(3) |
To modify
the item so that it becomes non-infringing; or |
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(4) |
To
remove said item and refund the purchase price and the transportation
and installation costs thereof. |
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Limitation:
The foregoing provisions as to patent protection by Raycon Technology
to Buyer shall not apply to any of the following:
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(1) |
To any items
manufactured to the design or specifications furnished by the Buyer. |
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(2) |
To orders
for special noncommercial items which Raycon Technology has not
sold or offered for sale to the public on the open commercial market. |
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(3) |
To any infringement
occasioned by modification by Buyer for any item without Raycon
Technology's written consent, or any infringement arising from the
use of an item with any adjunct or device added by the Buyer without
Raycon Technology's written permission.
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B. |
Patent indemnity by Buyer to Raycon Technology: To the extent that
items delivered thereunder are manufactures pursuant to detailed
designs furnished by Buyer, Buyer agrees to indemnify Raycon Technology
and hold Raycon Technology harmless from all legal expenses which
may be incurred as well as all damages and costs which may finally
be assessed against Raycon Technology in any action for infringement
of ay United States Letters Patent by such items delivered thereunder.
Raycon Technology agrees to promptly inform the Buyer if any claim
for liability made against Raycon Technology with respect to such
items and Raycon Technology agrees to cooperate with the Buyer n
every way reasonable available to facilitate the defense against
any such claim.
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| 18. |
MODIFICATIONS:
Unless otherwise provided, Raycon Technology reserves the right
to modify product specifications of products ordered by the Buyer
herein providing that the modification will not materially affect
form, fit or function.
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| 19. |
TOOLING:
Unless otherwise expressly provided, Raycon Technology shall retain
title to and possession of any models, patterns, dies, molds, jigs,
fixtures, tools and test equipment made for or obtained for the
performance of this order.
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| 20. |
TERMINATION:
In the event of the complete or partial termination or cancellation
of this order for the convenience of the Government, settlement
shall be made by negotiations in accordance with Section 52.249-2
of the Federal Acquisition Regulations, Termination For Convenience
of the Government (Fixed Prices), in existence as of the date of
this agreement. The words "Government" and "Contracting
Officer" shall mean Buyer, the word "Contract" shall
mean this order, and the word "Contractor" shall mean
Raycon Technology. Delete subparagraph (c). In paragraph (d), delete
"one year" and substitute "six months." In paragraph
(k), delete "90 days" and substitute "45 days."
In the event Buyer attempts to terminate or cancel this order, in
whole or part, where it is not for the convenience of the Government,
it shall constitute a breach of contract unless consent to such
termination or cancellation is obtained by Buyer from Raycon Technology
in writing. In any event, the price of all items delivered and all
items which have been finished, but not yet delivered, will be adjusted
upward to the applicable quantity break, if any, for the lower quantities.
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| 21. |
GOVERNING
LAWS: The terms of this Agreement and all rights and obligations
thereunder, shall be governed in accordance with the laws of the
State of California. Buyer hereby consents and submits to the jurisdiction
of the appropriate courts in the State of California for adjudication
of any question of law or fact arising thereunder.
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| 22. |
LIMITATIONS OF LIABILITY: Seller will not be liable for any loss,
damage, cost of repairs, incidental or consequential damages of
any kind, whether or not based upon express warranty or implied
warranty (except for the obligations assumed by Seller under the
Product Warranty Clause), contract negligence, or strict liability
arising in connection with the design, manufacture, sale, use or
repair of the product. In no event will Seller be liable to Buyer
for any amount in excess of the purchase price of the product, which
proves to be defective.
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| 23. |
SUPPLEMENTAL CLAUSES FOR EXPORT ORDERS:
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A. |
Currency:
the prices quoted herein are payable in U.S. Dollars.
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B. |
Proof of Export: The products are to be purchased only for export
and the Purchaser agrees to furnish Raycon Technology with proof
of exportation of all or any part of such products within five months
from the date of the Raycon Technology invoices, therefore if exportation
of any part shall not have occurred within that period, Purchaser
agrees to pay Raycon Technology upon demand, the amount of any manufacturer's
excise tax or other tax which now or hereafter may be imposed on
the sale of such products for consumption within the United States.
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C. |
License and Permit Requirements:
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(1) |
Raycon Technology
will secure all export licenses and permits required by the United
States Government, and Buyer will furnish reasonable cooperation
in acquiring such licenses and permits. If such licenses and permits
are not paid for by Buyer, such payments will be added to the contract
price.
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(2) |
Buyer will
secure all licenses and permits required by the foreign government,
and Raycon Technology will furnish reasonable cooperation in acquiring
such licenses and permits. The delivery schedule is contingent upon
securing all necessary licenses and permits.
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(3) |
Failure to
obtain a required license or permit in sufficient time to permit
delivery within the time set forth in the contract and without fault
or negligence of the contracting parties, shall occasion an equitable
adjustment in the delivery schedule. |
