TERMS & CONDITIONS
All Quotations, Purchase Orders, Order Confirmations, Invoices or any other form “in any media” for placing orders for goods or services from Rauch & Spiegel, LLC (“Order”) are expressly subject to the terms and conditions (“Terms and Conditions”) set forth herein. Rauch & Spiegel, LLC, is hereafter referred to as “Seller”, and the original purchaser of the products or services of Seller (collectively, “Goods”) is hereafter referred to as “Buyer”. Seller reserves the right to modify Seller’s Terms and Conditions of Sale from time to time without notice. Buyer’s purchases will be subject to those in effect at the time Buyer places an order.
1. OFFER AND ACCEPTANCE– ANY ORDER EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND ANY ADDITIONAL OR DIFFERENT TERMS ARE REJECTED UNLESS EXPRESSLY AGREED IN WRITING, SIGNED BY AN OFFICER OF SELLER, NOTWITHSTANDING ANY PRIOR TRANSACTIONS OR COURSE OF DEALING BETWEEN BUYER AND SELLER. No order of any kind between Buyer and Seller shall be binding on Seller unless and until it is accepted by Seller. Acceptance of Buyer’s Order is upon these Terms and Conditions; provided, however, if Buyer’s Order or offer is expressly conditioned upon Seller’s acceptance of Buyer’s terms and conditions, and the terms of quantity, price and the description of the Goods of Seller in Buyer’s offer are the same as set forth in Seller’s acceptance, then all other contrary or different terms in Buyer’s offer are expressly rejected and Seller’s acceptance shall create an agreement between Buyer and Seller to the extent of all consistent terms between Buyer’s offer and Seller’s acceptance, subject to and conditioned upon Buyer’s consent to any of these Terms and Conditions which may constitute terms additional to or different from those terms contained in Buyer’s offer. Buyer shall be deemed to have so consented by notifying Seller in writing or electronically, by accepting delivery of the Goods, or by using or selling the Goods. Acceptance by Seller of Buyer’s Order shall take place upon confirmation either electronically or in writing of Buyer’s Order, or by delivery to Buyer or Buyer’s carrier of all or any part of the Goods.
2. PRICE- All prices for Goods are quoted and payable in United States currency, unless otherwise agreed by Seller in writing. All prices are F.O.B. seller’s factory in Fort Collins, Colorado, United States of America (“Seller’s Factory”), unless otherwise agreed by Seller in writing. Prices are subject to change at any time, without notice, in Seller’s sole discretion. Seller shall have the right to correct any obvious errors in price.
3. TAXES- Prices do not include taxes. Any taxes which, under any existing or future law, Seller may be required to pay or collect with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the Goods shall be paid by Buyer to Seller on Seller’s demand. Buyer may claim an exemption from any such charges by providing the appropriate documentation to Seller prior to order placement.
4. DELIVERY- Delivery dates for any Goods are approximate, are done for the convenience of Buyer, and shall not be binding upon Seller or considered material to the performance of these Terms and Conditions. Shipping schedules and shipping commitments are based upon current production capabilities, material availability and inventory, and may be changed by Seller at Seller’s option as conditions may require. The Goods shall be sold and delivered F.O.B. Seller’s Factory, and delivery of Goods to Buyer shall be deemed to have taken place upon tender of Goods to Buyer or the shipping carrier. Seller reserves title to the Goods until paid for in full to Seller. For “Special” or “Custom” Orders only, Seller reserves the right to ship plus or minus 10% on the quantity ordered, and the Order will be deemed complete when shipped within such 10% range. Shipments in installments shall be permitted.
5. RISK OF LOSS- Buyer agrees to assume all risk for loss of, or damage or injury to, the Goods from the time they are tendered for delivery to the shipping carrier and for all risk of loss arising out of any delay in shipment of the Goods after they are tendered for delivery to the shipping carrier. Buyer shall be liable for the full purchase price whether or not the Goods are lost, stolen, damaged or destroyed.
6. INSPECTION, ACCEPTANCE AND RETURN OF GOODS- Buyer shall have ten (10) days from the date of delivery of the Goods to inspect the Goods to determine whether the Goods: (a) conform to Buyer’s Order, or other shipping document, as applicable, or, (b) are damaged, visibly defective or otherwise nonconforming. Buyer must assert any claim for the foregoing within such ten-day period by furnishing Seller with detailed written information of such damage, nonconformance, defect or shortage. In the event inspection and notice of rejection are not made within such ten-day period, Buyer shall be deemed to have accepted the Goods. No returns can be made without the prior authorization of Seller and a pre-assigned return authorization number issued by Seller. All returns are subject to inspection and acceptances by Seller. When returns are accepted, they may be subject to a handling and re-inspecting charge to be determined by Seller. All returns shall be in accordance with Seller’s specific shipping instructions.
7. PAYMENT- All Payments must be made in U.S. Funds. Unless payment for the Goods is due in full upon delivery or in advance, all invoices shall be due and payable, without offset or reduction, NOT LATER THAN 30 DAYS from the invoice date. However, Buyer may deduct 2% (two percent) of the invoice total if payment is post-marked or EFT (Electronic Funds Transfer) is effected NOT LATER THAN 10 DAYS from invoice date. By accepting merchandise you acknowledge that the Invoice total due is due and payable no later than 30 Days from Seller’s Invoice Date and overdue amounts will be subject to a Late Fee of 5 percent (5%) of the Invoice total. Interest will accrue at the rate of 5% per month (60% annual rate), or the maximum rate allowed under applicable law, until paid in full. In the event that Seller retains a collection agency or attorney to enforce any of the Buyer’s obligations to Seller, the Buyer agrees to pay all of Seller’s costs and expenses associated with such enforcement, including all collection, reasonable attorney fees and costs. Extension of credit may be changed or withdrawn at any time. Our preferred method of payment is via EFT. Buyer’s EFT fees are the responsibility of the Buyer. See Customer Payment Information document for EFT instructions.
8. SUSPENSION OF PERFORMANCE; SET-OFF- If, in Seller’s judgment, reasonable doubt exists as to Buyer’s financial responsibility, or if Buyer is past due in payment of any amount owing to Seller, Seller reserves the right, without liability and without prejudice to any other remedies, to suspend performance, decline to ship, or stop any material or the Goods in transit, until Seller receives payment of all amounts owing to Seller, whether or not due or adequate assurance of such payment has been made by Buyer to Seller.
9. LIMITED WARRANTY- Seller warrants that (a) Seller has the right to convey good title to the Goods sold hereunder and, upon Buyer’s payment in full therefor, Buyer shall have good title in and to such Goods, and (b) the Goods manufactured by Seller and sold hereunder to original Buyer are free from defects in material and workmanship occurring under normal use and conform, as applicable, to (i) Seller’s specification for stocked Goods, or (ii) Buyer’s specifications for the Goods if provided by Buyer to Seller and/or the specifications as indicated on the applicable Seller’s drawing. Seller’s warranty is limited to a period of 12 months or 12,000 miles from installation, whichever occurs first (“Seller’s Standard Warranty”). Seller may, in it’s sole discretion, increase the warranty period, on certain Goods on an individual basis, from time to time. Any increase in the said warranty period, on a particular product, beyond the Seller’s Standard Warranty, shall not become effective until communicated in writing to Buyer by an authorized representative of Seller The Goods shall be subject to tolerances and variations consistent with usual industry practices or with Seller’s current parts/engineering catalogs where applicable. Seller assumes no liability for specifications agreed upon, reviewed or provided by Buyer. This limited warranty does not apply to any Goods improperly installed, improperly removed, improperly handled, used in motorsports competition, misused, abused, altered or used other than as approved in writing by Seller, as determined by Seller’s inspection of the non-conforming Goods. Buyer’s sole and exclusive remedy shall be set forth in Section 11 of these Terms and Conditions.
10. WARRANTY DISCLAIMER- OTHER THAN THE LIMITED WARRANTY SET FORTH IN SECTION 9 OF THESE TERMS AND CONDITIONS ABOVE, SELLER MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLED, OF ANY KIND, WITH RESPECT TO THE GOODS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO ACCURACY, FUNCTIONALITY, PERFORMANCE OR MERCHANTABILITY. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY WITH RESPECT TO THE GOODS, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. ANY PERFORMANCE ESTIMATES DESCRIBED IN THIS ORDER, OR IN ANY OF SELLER’S WRITTEN OR ELECTRONIC OR MAGNETIC MEDIA PROPOSALS OR QUOTATIONS ARE ONLY ESTIMATES AND ARE NOT INTENDED AS AN EXPRESS WARRANTY. ANY SAMPLES SUBMITTED BY SELLER TO BUYER, AND ANY DESCRIPTIONS, ILLUSTRATIONS, OR FORECASTS IN TRADE LITERATURE, BROCHURES, OR OTHER DOCUMENTATION OR ELECTRONIC OR MAGNETIC MEDIA SHALL NOT BE CONSTRUED AS WARRANTIES AS TO SUBSTANCE, PERFORMANCE, QUALITY, WEIGHT OR DIMENSION, AND ANY FAILURE TO CONFORM WITH SUCH SAMPLES, DESCRIPTIONS, FORECASTS OR ILLUSTRATIONS SHALL NOT CONSTITUTE ANY BREACH OF ANY ORDER OR THESE TERMS AND CONDITIONS. NO SALES PERSONNEL, EMPLOYEES, AGENTS OR REPRESENTATIVES OF SELLER OR ANY THIRD PARTY ARE AUTHORIZED TO MAKE ANY REPRESENTATION, WARRANTY OR COVENANT, WHETHER IN WRITING OR ORALLY ON BEHALF OF SELLER, OTHER THAN THE LIMITED WARRANTY IN SECTION 9 ABOVE.
11. BUYER’S SOLE AND EXCLUSIVE REMEDY; LIMITATIONS OF LIABILITY- Seller’s sole obligation and liability to Buyer, and Buyer’s sole and exclusive remedy with respect to defective or otherwise nonconforming Goods is limited, in Seller’s discretion, to: (a) replacement (not including labor) of the nonconforming Goods and delivery to Buyer free of charge to the same location of original shipment; (b) repair (not including labor) of the non-conforming Goods and delivery to the Buyer free of charge to the same location of original shipment; or (c) refund of Buyer’s purchase price for the non-conforming Goods (without interest). If requested by Seller, Buyer shall provide to Seller sufficient documentation to substantiate any claim under said Limited Warranty, including, but not limited to, Installation Order(s), Repair Order(s), Work Order(s), Invoices and other writings or communications in any media. If requested by Seller and at Seller’s expense, Buyer shall return to Seller any Goods which are replaced or for which Buyer receives a refund, provided that in any such event, Buyer has complied with Seller’s return policies and procedures.
BUYER WAIVES ANY RIGHT TO ANY REMEDIES FOR NONCONFORMING GOODS OTHERWISE AVAILABLE AT LAW OR STATUTE OTHER THAN THOSE EXPRESSLY STATED IN THIS SECTION 11. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 11, SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, TORT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF REVENUES, PROFITS OR SAVINGS, LOSS OF DATA, PROCUREMENT, PRODUCT RECALL, PRODUCT REMOVAL OR REINSTALLATION, INCREASED OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, INDEMNITY OR REIMBURSEMENT FOR ANY CLAIMS ASSERTED AGAINST BUYER BY A THIRD PARTY ARISING DIRECTLY OR INDIRECTLY FROM THE MANUFACTURE, DELIVERY, SALE, USE, INSTALLATION, ASSEMBLY, DISASSEMBLY OR RECALL OF THE GOODS, REGARDLESS OF CAUSE OR FORM OF ACTION ASSERTED BY BUYER, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, STATUTORY LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN, UNFORESEEN OR FORESEEABLE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THE TERMS OF THIS SECTION, OR ANY PART THEREOF, SHALL BE HELD INVALID OR UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, SELLER’S TOTAL AGGREGATE LIABILITY TO BUYER UNDER ANY ORDER AND THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS GIVING RISE TO THE CLAIM. IF NOT PERMITTED BY APPLICABLE LAW, THIS SECTION SHALL NOT RELIEVE SELLER FROM LIABILITY FOR DAMAGES THAT RESULT FROM GROSS NEGLIGENCE OR WILLFUL OR TORTIOUS ACTS OF SELLER.
12. TECHNICAL CHANGES OR IMPROVEMENTS- Notwithstanding any other provision hereof, Seller reserves the right, without prior notice, at any time and from time to time, to make changes in: (a) any formula, data, tables, dimensions, materials and/or processes used in the manufacture of the Goods; or (b) to make changes in the design, specifications and capacities of any of the Goods; or ( c ) to discontinue manufacturing or supplying any of the Goods.
13. INDEMNIFICATION OF SELLER- Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, shareholders, affiliated companies and their respective successors and assigns from and against any and all claims relating to, in connection with or arising from; (a) any breach by Buyer of any provisions of these Terms and Conditions; (b) any claim or suit for ctual or alleged violation or infringement of any United States patent or United States copyright of any third party arising from Buyer’s designs, specifications or instructions to Seller; ( c ) any unauthorized modification, alteration, adaptation or use of the Goods; and (d) any claim or suit for damages arising from acts, representations or omissions of Buyer related to Buyer’s sale of the Goods, use of the Goods or incorporation of the Goods into a product or part thereof. Seller shall have the right to control the defense of any such claim, including, without limitation, authority to settle any such claim and seek reimbursement from Buyer and select counsel.
14. TOOLS, DIES, FIXTURES AND TECHNICAL DATA- Unless otherwise required by applicable law, any tools, dies, fixtures or technical data that Seller may develop for use in production of the Goods shall remain the sole property of Seller and shall be subject to the confidentiality provisions set forth herein. Where Seller furnishes Buyer technical data that will be used under a contract with the United States Government, Buyer shall affix the following legend upon such technical data: Technical Data contained herein are proprietary to Rauch & Spiegel, LLC and may not be used, disclosed, reproduced, modified or displayed without prior written approval of Rauch & Spiegel, LLC. U.S. Government license rights are limited to those mandatory rights identified in DFARS 252.7015(b) and/or to the rights identified in Rauch & Spiegel, LLC commercial license agreement.
15. CONFIDENTIALITY; NO LICENSE- Buyer shall not use, disclose, sell, license, publish, reproduce or otherwise make available Seller’s Confidential Information (as defined below), and Buyer shall secure and protect Seller’s Confidential Information in a manner at least as robust as the maintenance of Buyer’s confidential and proprietary rights, but in no event using less than reasonable efforts. “Confidential Information” means information not generally known by personnel who are not employees of Buyer or Seller, respectively, which is used by either Buyer or Seller, and is proprietary to Seller. Buyer acknowledges and agrees that disclosure of Seller’s Confidential Information would be detrimental to Seller. Buyer further agrees that no license, expressed or implied, under any copyright, patents, trade secrets or know how (“Know How”) of Seller is granted to Buyer by any Order or by any disclosure of Confidential Information or proprietary information hereunder. Seller shall retain all of its property rights in any such Know How which it possessed prior to the effective date of any Order and the property right to any new Know How developed by Seller during the performance of its obligations hereunder shall vest with Seller. Subject to the property rights of the Buyer in respect of pre-existing or developed Know How, if any, Seller shall be entitled to a perpetual, fully paid-up or no-cost license to use, to copy, to modify and to exploit Buyer’s Know How disclosed to Seller for the purpose of performing Seller’s obligations under any Order. Buyer agrees that in the event of a breach of this confidentiality provision, Seller shall be entitled to obtain injunctive relief against Buyer, without bond but upon due notice, in addition to such other relief as may appertain to law or in equity, and shall be entitled to all costs of suit, including reasonable attorney’s fees, related to enforcement of this Section 15.
16. LIMITATION ON ACTION- Any action or suit against Seller arising in any way from or with respect to these Terms and Conditions, any Order or the Goods, must be commenced not later than one (1) year after the cause of action has occurred.
17. EXPORTS- All sales, shipments, and sharing of technical data, both domestically and internationally, by Seller, its divisions, and subsidiaries, are done so in accordance with all applicable United States laws and regulations, including, but not limited to, the Export Administration Regulations (“EAR”), International Trafficin Arms Regulations (“ITAR”), Iranian Transaction Regulations (“ITR”) and the International Emergency Economic Powers Act (“IEEPA”) and any controls thereunder,and/or amendments thereof. By entering into any Order and/or accepting the Goods, Buyer confirms that it is not located in ( or a national resident of) anycountry under United States or United Nations embargo or sanction, not identified on any United States Department of Commerce Denied Persons List, Entity List,United States Department of State Debarred Parties List, and/or the United States Department of the Treasury’s Specially Designated Nationals List, and not directlyor indirectly involved in the financing, commission or support of terrorist activities or in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the EAR. Upon request, Buyer agrees to provide Seller with all information pertaining to the actual routing of Goods tobe exported and the intended use thereof. Any routing and/or use of the Goods contrary to the laws and regulations of the United States or country in which they arebeing used is prohibited.
18. FORCE MAJEURE- Seller shall not be liable for any failure to perform in accordance with any Order, including, without limitation, failure to deliver the Goods, caused for any reason, in whole or in part, beyond Seller’s reasonable control, including, but not limited to, production schedules of Seller’s suppliers, unavailability of materials, labor disturbances, acts of God, fire, flood, weather, terrorism or transportation difficulties.
19. CANCELLATION- Except as set forth in this Section 19, any Order may be cancelled or modified only by written agreement between Buyer and Seller. Buyer’s insistence upon cancelling or suspending fabrication or shipment, or Buyer’s failure to furnish specifications when required, may be treated by Seller as a breach of contract by Buyer, and Seller may cancel any unshipped balance of Goods without prejudice to any other remedies Seller may have.
20. ENTIRE AGREEMENT- These Terms and Conditions, together with the other documents expressly referred to herein constituting any Order, constitute the entire agreement under which Seller is supplying the Goods for sale to Buyer. No other terms, condition, or understanding, whether oral or written, shall be binding upon Seller, unless concurrently herewith or hereafter made in writing and signed by Seller’s authorized representative.
21. NO WAIVER- No waiver of any term, provision, covenant or condition of these Terms and Conditions by Seller, whether by conduct or otherwise, in any one or more instances, shall be deemed or construed as a further or continuing waiver of any such term, provision, covenant or condition or as a waiver of any other term, provision, covenant or condition hereof.
22. SUCCESSORS AND ASSIGNS- The rights, duties, agreements and obligations hereunder, or any portion thereof, shall be binding upon and inure to the benefit of Seller and Buyer and their respective successors and assigns.
23. GOVERNING LAW; U.N. CONVENTION ON THE SALE OF GOODS; JURISDICTION- Any Order is made and entered into in the State of Colorado, United States of America, and all the rights and duties of the parties arising from or relating in any way to the subject matter of any Order or the transaction(s) contemplated by it, shall be governed by, construed and enforced in accordance with the laws of the State of Colorado and the United States of America without regard to any conflict of laws rules. The rights and obligations of Buyer and Seller shall not be governed by the provision of the United Nations Convention on Contracts for the International Sale of Goods. Any suit or proceeding relating to any Order or the Goods may be brought in the courts, state or federal, located in Fort Collins, Larimer County, Colorado. BUYER HEREBY CONSENTS TO THE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, LOCATED IN FORT COLLINS, LARIMER COUNTY, COLORADO.