Last Updated: January 29, 2014
Please read these Terms carefully. By entering or using the Site and/or registering with the Site, you agree to these Terms. If you do not agree to these Terms (without modification), you are not authorized to view or use the Site.
1. GENERAL USE & RESTRICTIONS.
1.1 Use of the Site. You may use the Site only for lawful purposes and in accordance with these Terms. You agree not to enter or use the Site:
Additionally, you agree not to:
1.2. You further agree not to decompile, reverse engineer or disassemble any software or other products or processes accessible through the Site, and not to insert any code or product or manipulate the Site in any way that affects the user’s experience including, without limitation, taking any action that imposes, or may impose, an unreasonable or disproportionately large load on the Site. Rayotek may, in its sole discretion, terminate or suspend your entry to, and/or use of, the Site, or any portion thereof, at any time, with or without notice and for any reason (or no reason), and you agree that (a) if your authorization to enter the Site is terminated, you will not thereafter enter, or attempt to enter, the Site, directly or indirectly, and (b) if your authorization to enter the Site is suspended, you will not thereafter enter, or attempt to enter, the Site, directly or indirectly, until your suspension is removed and Rayotek gives you written notice thereof.
1.3 Information Provided. If you provide any information to us, you agree to provide only true, accurate, current and complete information and warrant that Rayotek can use such information for the purposes provided in Rayotek’s policies as well as the purpose for which it was provided.
1.4 Use of Content. You may print or copy any information displayed or transmitted on the Site (collectively, “Content”) that you are authorized to access, solely for informational use provided that you (a) do not remove any title, trademark, copyright and/or restricted rights notices contained on such Content, and (b) strictly comply with the provisions of these Terms including, without limitation, Section 1.5 below.
1.5 Restrictions. Except as provided in Section 1.4 above, you may not (and you agree that you will not) sell, alter, modify, create derivative works, or publicly display any Content without first receiving Rayotek’s express written permission. You further agree not to, without first obtaining Rayotek’s express written permission, (a) use any of its trademarks as metatags on other web sites, (b) use the Site in any manner that is illegal or impairs the operation of the Site or its availability or usage by others, and/or (c) display any part of the Site in frames (or any Content via in-line links).
2. THE SERVICE.
2.1. General. The Site allows users to view and/or obtain information about goods posted on the Site for the purposes of purchasing such goods from the Site.
2.2. Account and Password. If we issue an account to use the Service to you (an “Account”), we will also issue a username and/or password for such Account to you (each user of the Service that is issued an Account shall be referred to herein as a “Registered User”). You may not authorize any third party to enter and/or use your Account on their behalf. Accordingly, you agree to protect your username and password by, among other things, keeping your username and password confidential. If, notwithstanding the foregoing obligation, you allow another party to use your username and/or password to access your Account, you will be responsible for all use by the party using your Account. You agree to (a) immediately notify us of any unauthorized use of your password or any other breach of security, and (b) ensure that you exit from your Account at the end of each session.
2.3. Terms of Sale. All sales of goods made using the Service are governed by Rayotek’s Terms and Conditions of Sale in effect at the time of sale.
3. SUBMISSIONS & USER-CREATED CONTENT.
3.1. The Site may contain bulletin boards, chat groups, forums and other interactive areas that allow users to express their opinions and post information and/or other materials (collectively, “User Generated Content”). We do not monitor all of the User Generated Content posted or transmitted by users and third party information providers.
3.2. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers and users, are those of the third party and not of the Site. The Site does not represent or endorse the accuracy or reliability of any User Generated Content displayed, uploaded, or distributed on the Site by any third party. You acknowledge that any reliance upon any such third party User Generated Content is at your sole risk.
3.3. We may, in our sole discretion, edit and/or remove any User Generated Content you submit to the Site. Without limiting the generality of the foregoing, we may edit or remove any User Generated Content you submit to the Site that we, in our sole discretion, deem abusive, defamatory, obscene, unlawful, inappropriate or otherwise unacceptable, and you waive any moral rights you may have with respect to changes in the User Generated Content. We are not responsible for maintaining your posted User Generated Content and we may, in our sole discretion, delete or destroy it at any time with no liability or obligation to you.
3.4. You are solely responsible for any User Generated Content you submit to the Site. We shall not be liable for the use or misuse of any information or data, including personal information that is included in your posted User Generated Content.
3.5. By submitting User Generated Content to the Site, you hereby grant us, our affiliates and related entities, a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sublicensable right and license to use, copy, exploit, modify, archive, store, reproduce, adapt, publish, translate, create derivative works from, distribute, perform and display all such User Generated Content in any form, media, software or technology of any kind now existing or developed in the future. You further grant us, our affiliates, related entities, licensees and assignees the right to use your name and any other information about you that you provide in connection with any such use of the User Generated Content. You understand and agree that visitors to the Site may use your User Generated Content in accordance with these Terms.
4. USER GENERATED CONTENT LIMITATIONS.
4.1 You agree not to post User Generated Content that:
4.2. Any User Generated Content posted by you or others will be deemed not to be confidential or secret. You understand that personal and other information (e.g., username, e-mail address, phone number) that you post on public portions of the Site (such as in: blogs, forums and public chats) is generally accessible to, and may be collected and used by others, and may result in unsolicited messages or other contact from others. To protect your safety, please use your best judgment when posting information. We particularly discourage divulging personal phone numbers and addresses or other information that can be used to identify or locate you.
5. LINKING & THIRD PARTY DEALINGS.
5.1. Links to External Sites. Rayotek may provide hyperlinks to other web sites and Internet resources operated by parties other than Rayotek. Rayotek has no control over such sites and resources or their privacy policies. Such hyperlinks are provided for your reference only. The inclusion of hyperlinks to such web sites does not imply any sponsorship, affiliation or endorsement of the material on such web sites or with their operators.
5.2. Linking to the Site. Subject to the further provisions of this Section 5.2, Rayotek welcomes links to the Site from other web sites. If Rayotek demands that you not link to the Site, or any portion of the Site, you agree that you will not, directly or indirectly, link to the Site or such portion of the Site as directed in our demand, at any time after such demand is made.
6. INTELLECTUAL PROPERTY.
6.1. General. Except for Content that is in the public domain, the Site and all original Content, as well as the selection and arrangement of the Content, is owned by (or licensed to) Rayotek or its suppliers and is protected by copyright, trade dress, trademark, unfair competition, and/or other laws and may not be used, copied or imitated in whole or in part except as expressly provided herein. Except as otherwise expressly provided in these Terms, all rights in and to the Site and Content are expressly reserved by Rayotek.
6.2. Trademarks. Trademarks and related logos of Rayotek, and, except as expressly provided in Section 1.4 above, may not be copied, imitated or used, in whole or in part, without Rayotek’s prior written permission. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks and/or trade dress of Rayotek or its licensors and may not be copied, imitated, or used, in whole or in part, without Rayotek’s prior written permission.
7. POLICY, NOTICES & PROCEDURES FOR CLAIMS OF COPYRIGHT INFRINGEMENT.
Rayotek respects the intellectual property rights of others. If you believe that your work has been copied and is accessible on the Site in a way that constitutes copyright infringement, you may notify our agent as provided in this Section. Pursuant to Title 17, United States Code, Section 512(c)(2), Rayotek designates the Sight Window Sales Manager as its agent designated to receive notification of claimed copyright infringement (“Designated Agent”). The contact information for the Designated Agent is:
Sight Window Sales Manager
Rayotek Sight Windows
11495 Sorrento Valley Road,
San Diego, California, 92121
You hereby agree to defend, indemnify and hold harmless Rayotek and its affiliates, officers, members, directors, employees, shareholders, information providers, suppliers and licensees (collectively, "Indemnified Parties") from and against any and all liability and costs, including, without limitation, reasonable attorney’s fees, incurred by the Indemnified Parties, or any of them, in connection with any claim arising out of (a) your entry and/or use of the Site (including, without limitation, the Service), and/or (b) any breach, or alleged breach, of any of these Terms or any other policy of Rayotek by you.
9. DISCLAIMER OF WARRANTIES.
Your use of the site and its content is at your own risk and is provided on an "as is" and "as available" basis. Neither Rayotek nor any person associated with Rayotek makes any warranty or representation with respect to the completeness, security, reliability, quality, accuracy or availability of the site or its content. Without limiting the foregoing, neither Rayotek nor anyone associated with Rayotek represents or warrants that the site or its content will be accurate, reliable, error-free or uninterrupted, that defects will be corrected, that the site or the server that makes it available are free of viruses or other harmful components or that the site or any content will otherwise meet your needs or expectations.
10. LIMITATION OF LIABILITY.
In no event will Rayotek, its affiliates or their respective licensors, service providers, employees, agents, officers or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with your use, or inability to use, the site, any websites linked to it, or any content on the site or such other websites, whether direct, indirect, special, incidental, consequential or punitive damages, including but not limited to, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable
11. MODIFICATIONS TO THE SITE.
For the avoidance of doubt, Rayotek may modify, suspend, discontinue and/or restrict the use of all or any portion of the Site including, without limitation, the Service and Content, at any time for any reason (or for no reason) and without notice or liability.
12. GOVERNING LAW AND JURISDICTION.
The Site is hosted on servers located in the United States and is intended to be viewed by residents of the United States. These Terms shall be deemed to be agreed to by you in San Diego County, California. These Terms, and all matters arising out of or relating to these Terms, shall be governed by the laws of the State of California and the United States, without giving effect to the conflict of law provisions thereof and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You consent to exclusive jurisdiction and venue in the federal courts sitting in San Diego, California unless no federal subject matter jurisdiction exists, in which case you consent to exclusive jurisdiction and venue in the state courts sitting in San Diego County, California. You hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which you may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. You agree that any cause of action that you may desire to bring arising out of or related to these Terms must commence within one (1) year after the cause of action arises; otherwise, such cause of action shall be permanently barred.
13. GENERAL PROVISIONS.
If any provision of these Terms is declared or found to be illegal, unenforceable or void, then the invalid or unenforceable portion shall be modified in accordance with the applicable law as nearly as possible to reflect the original intention of the applicable provision, and the remaining sections of these Terms shall remain in full force and effect. No right or remedy conferred by these Terms is exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time. Rayotek may provide notice to you relating to these Terms by sending an e-mail to your last known e-mail address, if any, your last known postal address, if any, or posting a notice on the Site, and any such notice shall be deemed given and received on the earlier of the day it is sent to you or the day it is posted on the Site. A printed version of these Terms and of any notices given to you in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The failure of Rayotek to insist upon or enforce strict performance by you of any provision of these Terms shall not be construed as a waiver of any provision or right. If Rayotek brings any suit against you to enforce these Terms or otherwise in connection with your use and/or enter of the Site, you agree that if Rayotek prevails in such suit Rayotek shall be entitled to recover all costs and expenses incurred in such suit including reasonable attorneys’ fees. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms.
WEBSITE TERMS AND CONDITIONS OF SALE
The Sales Order Confirmation and/or Receipt together with these terms and conditions (collectively, the “Order”) is an acceptance by RAYOTEK SCIENTIFIC, INC. (“Seller”) of any offer or purported offer by customer (“Buyer”) for product(s) and/or service(s) (“Product”) to be supplied by Seller to Buyer per Order. Order is made conditional to these terms and conditions of sale (“Terms”). Seller hereby rejects any prior offers or purported offers made by Buyer with regard to Product.
All orders are subject to approval and written acceptance by way of a Sales Order Confirmation by an authorized representative of Seller.
Any change to Order requires written consent by Seller and may include, but is not limited to a change in price, delivery, payment, or performance warranties.
No Product may be returned without Seller’s prior approval and Seller’s issuance of a Return Merchandise Authorization (RMA) Number. If a return is approved, Seller will issue an RMA Number within 2 business days of receipt of request. Shipping costs for return of Product shall be at the cost of the Buyer unless determined otherwise by Seller. A restocking charge, at Seller’s discretion, may be applied against any Product returned. Issuance of a credit is subject to the return of the Product to Seller, to subsequent inspection by Seller and determination by Seller that such Product is defective. No returns shall be accepted for custom products unless otherwise agreed upon in writing by Seller.
Unless otherwise specified in writing, pricing is as listed on the website at the time of the Order or via quotation on custom Orders and Orders over $10,000. Prices quoted do not include any sales, use, excise, occupational or other tax or freight unless otherwise specified. Pricing is subject to revision if Buyer modifies their request. Clerical errors are subject to correction and cancellation of any Orders with pricing errors.
5. DELIVERY/FORCE MAJEURE.
Quotation delivery lead times are only estimates. Actual Order delivery dates are based on the Seller’s manufacturing timeframes at the time of receipt of Buyer’s on-line order and/or purchase order and supersedes any prior delivery estimate. Seller reserves the right to make partial shipment(s) and invoice therefor. Seller assumes no liabilities for delays or non-performance resulting from, but not limited to, Acts of God, fire, explosion, flood, war, terrorism or threats of terrorism, act of or as authorized by any government, accident, labor trouble or shortage, inability to obtain equipment, material, transportation, acts of Buyer or any acts beyond the control of Seller. Delivery to carrier shall constitute delivery to Buyer and all risk of loss or damage in transit shall be borne by Buyer. If, because of Buyer’s inability to take delivery, Product is not shipped or is returned, Seller may have them stored for Buyer at Buyer’s expense, risk, and account, and for all other purposes they shall be considered “shipped.” On receipt Buyer shall unload, handle, inspect, store and install the products in accordance with generally accepted practice or specific instructions provided for Product.
6. PACKAGING AND SHIPMENT.
Unless otherwise agreed to in writing by Seller (i) all Products shall be shipped FOB Seller’s warehouse (ii) all shipments will be made using a carrier of Seller’s choice, (iii) all shipments will include insurance up to the value of the Product, and (iv) all costs, including international customs fees and import duties, will be the responsibility of the Buyer. Product sold hereunder shall be packed or crated and shipped in accordance with Seller’s specifications. Any special packing, crating, shipping or unloading requirements of Buyer must be agreed upon by Seller in advance of the time of purchase. Shipping cost will be determined at the time of on-line order for Stock Products and at the time of shipment for custom orders and orders over $10,000. Shipping cost shall be based on package size and weight, method of shipment, shipping address and insurance. Weights listed, if any, are approximate. All Products shall be shipped to a physical address. Seller will not ship Product to a Post Office Box. For international shipments, Buyer is the importer of record and must comply with all laws and regulations of the destination country.
Buyer shall inspect Product upon arrival and shall give written notice of any damage or shortage to Seller and carrier within 7 (seven) business days of carrier’s delivery. Failure to give such written notice of any damage or shortage will constitute satisfactory shipment by Seller and irrevocable acceptance by Buyer of Product listed as shipped. Claims for shipping damage should be made directly to the carrier by Buyer.
8. REPAIRS AND ALTERATIONS.
Any repairs or alterations made to Product by Buyer shall void all warranties and shall be at the expense of Buyer unless specifically authorized in writing by Seller. In no event shall Seller accept financial responsibility or liability for damage, injury or death resulting from unauthorized repairs or alterations.
9. LIMITED WARRANTY.
Unless explicitly stated otherwise in writing by Seller, Seller warrants its Products for one (1) year from date of shipment to Buyer against defects in workmanship and material. Some Products require re-certification within a specified time from shipment to Buyer. If said Product is not re-certified within the specified time span the warranty is void. Specifications provided by Seller are guidelines only and the particular use and application will determine the actual performance of Product. Buyer’s claim of defective Product must be verified by Seller and determination if Product is defective is at Seller’s sole discretion. Seller’s liability under this warranty shall be limited to the replacement or repair, at Seller’s sole discretion, of any defective Product. The warranty does not apply to any defect, malfunction or failure caused by repairs or modifications made by other than or without the consent of Seller or if the article has been subject to abuse, misuse, neglect, tampering, accident or damage by circumstances beyond Seller’s control, including without limitation, acts of God, war, acts of government, corrosion, power fluctuations, freeze-ups, labor disputes, differences with workmen, riots, explosions, vandalism, or malicious mischief. The warranty on component parts not manufactured by Seller is limited to that of the manufacturer thereof, if any. The foregoing warranties do not cover reimbursement for labor, transportation, removal, installation, or other expenses which may be incurred in connection with replacement or repair.
10. LIMITATION OF LIABILITY.
Under no circumstances shall Seller be liable to Buyer or any other person or entity for incidental, consequential, exemplary, punitive or special damages or any other losses or expenses, including without limitation, for injuries or death to persons or damage to property, loss of profit or revenues, cost of substitute products, loss of use, downtime costs, or claims of Buyer’s customers even if Seller has been advised of the possibility of such damages. Seller’s aggregate liability arising out of or relating to any Product purchased shall not exceed the purchase price actually received by Seller for the allegedly defective Product.
11. SECURITY INTEREST.
Buyer hereby grants to Seller a purchase money security interest in the Product, together with all additions and accessions to, substitutions for and replacements, products and cash and non-cash proceeds of all of the foregoing including proceeds of all insurance policies insuring the foregoing (collectively, the “Collateral”). Seller is authorized to file financing statements describing the Collateral and in such jurisdictions it deems appropriate without further consent from Buyer. Buyer shall pay Seller, upon demand, all costs and expenses incurred by Seller with respect to the administration, enforcement, collection or protection of its first position priority purchase money security interest and lien in and to the Collateral, the enforcement of any Claims against the Buyer or the exercise of any of its rights, remedies or privileges granted in the order, including reasonable attorneys’ fees.
Buyer shall defend, indemnify and hold Seller, its agents and employees harmless from and against all claims, suits, damages, expenses (including reasonable attorneys’ fees), including death or injury, arising out of or relating to Buyer’s (i) provided specifications, structure, operation, material, or method of making Product, including, without limitation, any resulting violation of intellectual or proprietary rights, (ii) use, misuse or disposal of Product, (iii) violation of US Export Laws, and (iv) breach of these Terms.
13. PAYMENT TERMS.
All payments are due at time of purchase for online Orders and as stated on invoice for custom Orders and Orders over $10,000. Custom Product may require progress payments as designated by Seller. Seller reserves the right to modify its payment terms at any time. Invoices not paid when due are subject to a late payment service charge of the lesser of 1-1/2% (one and one half percent) per month or the maximum legal service charge permitted under the law. If Buyer fails to make any payment when due, Buyer shall be liable for all expenses related to collection of past due amounts, including, without limitation, attorneys’ fees and costs. If, in Seller’s judgment, the financial condition of Buyer does not justify continuance of the terms of payment above, Seller may require full or partial payment in advance or otherwise adjust the terms including ceasing to supply Buyer.
Custom orders may not be cancelled or returned. Cancellation of standard in-stock Product is subject to a restocking fee at Seller’s discretion.
Product furnished herein may not comply with all Federal, State, and local laws, regulations or ordinances unless expressly agreed to in writing. It is the Buyer’s sole responsibility to insure that Product is compliant and used in a safe manner.
16. EXPORT COMPLIANCE.
It is the sole responsibility of Buyer to clearly mark and identify all communications, documents, specifications, structure, materials, instructions, software, designs or other Technology or Technical Data provided by Buyer to Seller that fall under the jurisdiction of US Export Laws (“Controlled Items”). US Export Laws include, but are not limited to: the Arms Export Control Act, the International Traffic in Arms Regulations, the Export Administration Act, the Export Administration Regulations and any other statute(s) or regulation(s) governing the sale, export, disclosure or exchange of any item by a U.S. Person with, or to, another country or a person who is a citizen of another country and all successor and supplemental laws and regulations to the above. The terms Technology and Technical Data shall have the meanings provided for in the US Export Laws. Buyer represents and warrants that the Product to be provided by the Seller are subject to US Export Laws and will not dispose of any such Product except as authorized by the US Export Laws. Buyer represents and warrants that it is either 1) a U.S. Person as that term is defined in the US Export Laws, or 2) that it has disclosed to Seller’s Representative in writing the country in which it is incorporated or otherwise organized to do business and the citizenships and U.S. immigration status of all persons with access to Product; or if Buyer is a natural person, all citizenships and U.S. immigration status. Buyer further covenants that it shall comply with any and all US Export Laws, and any license(s) issued thereunder.
17. APPLICABLE LAW.
The laws of the State of California shall govern these Terms and the courts of the State of California, County of San Diego shall be the exclusive venue and jurisdiction.
Seller may, at Seller’s sole option, require Buyer to arbitrate any controversy, claim or dispute arising out of or relating to these Terms or any other issue. If Seller chooses arbitration, such arbitration shall be conducted before the American Arbitration Association in the English language, and shall take place in San Diego, CA. One arbitrator shall preside, and there shall be no discovery rights in the event that the claims at issue do not exceed $150,000. Otherwise, discovery shall be limited to (per Claimant side or Respondent side): 20 interrogatories, 25 document requests, 30 requests to admit, 12 hours of deposition time and each party may call no more than one expert to provide opinions and/or to testify. The arbitration shall be completed no longer than 90 days after receipt of the initial demand by the respondent.
Buyer and Seller each agree that these Terms shall govern and control with respect to all orders by Buyer from Seller, and no term, condition, warranty or representation appearing in any purchase order or other documentation of Buyer will govern unless agreed to in writing by Seller.
Neither party hereto shall disclose any information regarding any subject matter hereof or proprietary technical information received from the other party, except to the extent that disclosure is required by law or is otherwise agreed to in writing by the parties. Any current and executed non-disclosure agreements that exist between Buyer and Seller shall supersede this section.
In the event that any provision herein shall be found to be void or unenforceable, this shall not be construed to render any other provisions void or unenforceable, and all other provisions shall remain in full force and effect unless the provisions which are invalid or unenforceable shall substantially affect the rights or obligations granted to or undertaken by the parties.
22. INTELLECTUAL PROPERTY.
Each party owns or has a license to use its respective patents, copyrights, trademarks, design rights, trade secrets, know-how and other intellectual property and proprietary rights (“IP Rights”) created or developed prior to entering into the Order including all modifications, improvements or changes in or to such pre-existing IP Rights.
Order together with all other exhibits referenced and attached hereto embodies the entire understanding between Buyer and Seller and there are no agreements, understandings, conditions, warranties, or representations, oral or written, express or implied, with reference to the subject matter hereof which are not merged herein. Any changes or revisions to these Terms by Buyer must be authorized in writing by an authorized officer of Seller.