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These Terms & Conditions of Sale ("Terms") govern all quotations, purchase orders, sales orders, order acknowledgments, shipments of products, and performance of services by RAM Enterprise, Inc. ("RAM") and constitute the controlling agreement between RAM and the buyer or user accepting these Terms ("Buyer"), unless Buyer and RAM have previously entered into a mutually executed Master Service Agreement or other written agreement that expressly governs the transaction (a "Governing Agreement").
In the event a Governing Agreement exists, the terms of that agreement shall control only with respect to the subject matter expressly covered therein, and these Terms shall supplement the Governing Agreement as to any matters not addressed.
These Terms shall apply whether or not they are expressly referenced in each individual transaction document.
Any terms or conditions contained in Buyer's purchase orders, acknowledgments, invoices, or other documents that are inconsistent with, additional to, or different from these Terms or any applicable Governing Agreement are hereby expressly rejected and shall be null, void, and of no force or effect, whether or not RAM objects to such terms. No prior course of dealing between the parties, usage of trade, or course of performance shall be relevant to supplement or explain any term of these Terms. RAM's acceptance of any order, delivery, or payment shall not be deemed acceptance of any such additional or different terms.
Buyer's electronic acceptance (including by click-through or similar mechanism) constitutes Buyer's binding agreement to these Terms. These Terms may be provided by electronic link and are incorporated by reference into any quotation, purchase order, sales order, order acknowledgment, or other transaction document. Access to such link constitutes receipt of these Terms.
Buyer's acceptance of any order, issuance of a purchase order, acceptance of delivery, shipment of goods, commencement of services, or payment of any invoice constitutes unconditional acceptance of these Terms.
Unless otherwise stated in writing, RAM's quotations are valid for five (5) business days from the quote date. Quotations are subject to withdrawal, modification, or correction by RAM at any time prior to RAM's written acceptance of Buyer's order. Quantities, specifications, and availability are subject to change without notice.
The price for products and services is documented in RAM's quote. All prices are subject to adjustment by RAM at any time prior to shipment or commencement of services. If at any time there is an increase in RAM's costs outside RAM's control, including but not limited to materials, labor, transportation, tariffs, duties, insurance, or regulatory costs or overhead prior to completion, such additional cost shall be borne by Buyer and reflected in a revised invoice or change order, which Buyer shall pay without offset or deduction. Buyer's continued acceptance of goods or services after notice of a price adjustment shall constitute acceptance of the revised pricing.
All orders must be submitted in electronic format. Any electronic acknowledgment or approval by RAM shall constitute only confirmation of receipt. RAM's shipment of goods or commencement or completion of services or Buyer's receipt, acceptance, or use of the goods shall constitute Buyer's acceptance.
Services are limited strictly to the scope expressly identified in RAM's written quote, statement of work, or order acceptance. RAM shall have no obligation to perform any services not expressly set forth in writing. Any change in scope, schedule, or site conditions may result in additional charges, which Buyer shall pay. Buyer shall provide timely access, accurate information, permits, utilities, and safe and suitable site conditions required for RAM's performance. Buyer represents and warrants that all site conditions comply with applicable federal, state, and local laws, regulations, and safety standards, including without limitation OSHA and MSHA requirements. Buyer shall be solely responsible for all environmental, hazardous material, and pre-existing site conditions.
RAM shall not be responsible or liable for delays, interruptions, deficiencies, additional costs, or failures in performance caused by site conditions, existing equipment, inaccurate or incomplete information provided by Buyer or others, lack of access, or conditions beyond RAM's reasonable control.
RAM reserves the right, at any time and without liability, to suspend or stop work if RAM, in its sole discretion, determines that site conditions are unsafe, hazardous, non-compliant, or otherwise present a risk to personnel, property, or equipment. Any delay, suspension, or additional costs resulting from such conditions shall not constitute a breach by RAM, and Buyer shall remain responsible for all resulting costs, schedule impacts, and remobilization expenses.
Any order that is in the process of production, fabrication, shipment, or performance of services is not subject to cancellation, deferment of delivery, suspension of work, or change of specification without the prior written approval of an authorized representative of RAM.
Buyer shall be liable for all costs, charges, and expenses incurred or committed by RAM in connection with any cancellation, order placed on hold, or delay, including but not limited to materials, labor, subcontractor costs, storage, handling, administrative costs, lost profits, overhead, restocking fees, and any other expenses incurred as a result of such cancellation or delay, including delays caused by lack of Buyer-supplied information, access, approvals, or site readiness.
RAM reserves the right to invoice Buyer for total payment for goods and/or services completed or in process, including anticipated profit thereon, and to assess reasonable storage and handling charges for goods held pending Buyer direction. Any such delay, suspension, or cancellation shall not relieve Buyer of its payment obligations, nor shall it constitute a breach by RAM. Buyer shall also reimburse RAM for all demobilization and remobilization costs.
All invoices are due net thirty (30) days after the date of invoice, with all past-due accounts subject to a service charge of one and one-half percent (1.5%) per month (nineteen percent (19%) annually), or the maximum rate permitted by law. RAM may require advance payment, deposits, or letters of credit prior to commencing work or shipping goods, in RAM's sole discretion. Buyer shall not withhold, offset, or deduct any amounts from payments due to RAM for any reason, including disputed charges, counterclaims, or setoffs.
As collateral security for the payment of invoices, Buyer hereby grants to RAM a lien on and continuing security interest in and to all of Buyer's right, title, and interest in the goods and services (and related proceeds), wherever located, whether now existing or hereafter arising, together with all accessions, replacements, modifications, and proceeds thereof. The security interest granted under this provision constitutes a purchase-money security interest under the Nevada Uniform Commercial Code, NRS 104.9103.
In the event RAM incurs any costs or expenses in connection with the collection of amounts due, Buyer agrees to pay all such costs and expenses, including but not limited to internal administrative costs, accounting costs, credit department costs, collection agency fees, court costs, filing fees, expert fees, and attorneys' fees, whether or not litigation is commenced and whether incurred before, during, or after suit or judgment.
Non-payment of due invoices, failure to provide required deposits or security, or any other circumstance indicating in RAM's sole judgment, that Buyer's financial condition has materially deteriorated or that collection of amounts owed is at risk, shall, at RAM's option, and without notice, entitle RAM to declare all outstanding invoices immediately due and payable, postpone, suspend, or withhold any further performance or delivery until all amounts owed to RAM have been paid in full and adequate assurance of future payment has been provided, and to terminate any outstanding order without liability to Buyer.
Prices do not include any present or future federal, state, local, or foreign taxes, duties, assessments, or similar charges, unless specifically stated in writing by RAM. Buyer shall be solely responsible for the payment of all such taxes arising out of or relating to the purchase of goods or services, excluding taxes based solely on RAM's net income.
When applicable, such taxes may be added to the quoted price or invoiced separately and shall be paid by Buyer. Buyer shall provide RAM with a valid tax-exemption certificate in a form acceptable to the applicable taxing authority; failure to provide such documentation shall result in Buyer being responsible for the payment of applicable taxes.
Unless expressly stated otherwise in writing by RAM, all deliveries are F.O.B. shipping point. Title to and risk of loss of goods shall pass to Buyer upon delivery to the carrier. RAM shall have no responsibility or liability for loss, damage, delay, or expense attributable to any carrier after goods are delivered to the carrier. Buyer shall be solely responsible for procuring and maintaining adequate insurance covering the goods from the point of delivery to the carrier.
Any delivery dates provided by RAM are estimates only, and are not guaranteed. RAM shall not be liable for delays in delivery arising from the carrier, transportation issues, supply chain disruptions, or events beyond RAM's reasonable control. Partial deliveries are permitted, and each delivery shall be deemed a separate transaction. RAM may ship goods in advance of the estimated delivery date upon reasonable notice to Buyer.
Goods manufactured by RAM are warranted only to the extent that RAM will, at its sole option, rectify or exchange defective goods, when notified as provided in Buyer Inspection and Acceptance, or shall appropriately reduce the purchase price, or, at RAM's sole discretion, refund the purchase price of any product which, when properly stored, transported, installed, and used strictly in accordance with RAM's written instructions and specifications and in accordance with best installation and operating practices and techniques, is proven to be defective in material or workmanship within one (1) year from the date of shipment. This warranty shall not be extended by any repair, replacement, or re-performance.
Written notice of any alleged defect must be provided within ten (10) calendar days of Buyer's discovery of the defect, and in all cases within the applicable warranty period. Such written notice is a condition precedent to any warranty claim, and failure to provide timely written notice shall constitute an irrevocable waiver of any and all warranty claims. RAM shall have an opportunity to inspect the allegedly defective goods or services at RAM's discretion and at a location designated by RAM prior to being obligated to provide any remedy. Buyer shall, at its expense, return or make available for inspection any allegedly defective goods in the manner directed by RAM. No goods shall be returned without RAM's prior written authorization.
Any defect or failure caused by or resulting from Buyer's custom specifications, designs, misuse, abuse, negligence, improper application, improper installation, improper maintenance, unauthorized modification, alteration, repair, operation beyond rated capacity, failure to follow RAM's instructions, normal wear and tear, site conditions, environmental factors, corrosion, erosion, third-party products or services, or causes external to the goods or services is expressly excluded from this warranty. RAM shall have no warranty obligation for goods or components not manufactured by RAM.
Goods sold by RAM that are manufactured by others are warranted only to the extent of, and are limited to, the warranty of the manufacturer, if any. Such goods are otherwise provided "AS IS", and RAM makes no representation or warranty with respect thereto and shall have no responsibility or obligation to enforce any third-party manufacturer warranty on Buyer's behalf.
In the event RAM performs any services for or on behalf of Buyer, Buyer's sole and exclusive remedy for any breach of warranty relating to such services shall be, at RAM's sole option, either:
Such remedy must be claimed within thirty (30) days of completion of the applicable services, or the claim shall be deemed waived.
THE WARRANTIES SET FORTH ABOVE ARE MADE IN LIEU OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY STATED HEREIN, RAM MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. RAM EXPRESSLY DISCLAIMS, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. ALL GOODS AND SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS."
Buyer acknowledges that the remedies set forth in this Section are exclusive and in lieu of all other remedies, whether at law, in equity, or otherwise, and that no statement, representation, sample, drawing, description, advice, or information, whether oral or written, shall create any warranty or expand or modify the warranties or remedies set forth herein. This warranty is personal to Buyer and does not extend to Buyer's Buyers, end users or any third party. Buyer assumes all risk and liability for the selection, use, and results obtained from the goods and services.
To the fullest extent permitted by law, RAM's total aggregate liability arising out of or relating to any order, goods, services, or these Terms, whether arising in contract, tort (including negligence), strict liability, warranty, indemnity or otherwise, shall not exceed fifty percent (50%) of the amounts actually paid by Buyer for the specific goods or services giving rise to the claim. This limitation applies regardless of the number of claims, suits, or actions and whether brought individually or in combination.
IN NO EVENT SHALL RAM BE LIABLE for any consequential, incidental, indirect, special, exemplary, or punitive damages, including but not limited to loss of profits, loss of revenue, loss of use, loss of production, loss of business, loss of goodwill, loss of data, downtime, cover costs, cost of substitute goods or services, business interruption, increased costs of operation, or any damages arising from third-party claims against Buyer, even if RAM has been advised of the possibility of such damages or even if the exclusive remedy provided herein is deemed to have failed of its essential purpose.
Buyer acknowledges that the pricing for goods and services reflects this allocation of risk and that RAM would not have entered into the transaction absent these limitations of liability. No action arising out of or relating to these Terms, any order, goods, or services may be brought by Buyer more than one (1) year after the cause of action accrues, regardless of when Buyer discovers or should have discovered the claim.
Buyer shall defend, indemnify, and hold harmless RAM, its affiliates, and their respective officers, directors, employees, agents, successors, assigns, and representatives from and against any and all claims, demands, causes of action, damages, losses, liabilities, fines, penalties costs, and expenses (including reasonable attorneys' fees and costs of investigation) arising out of or relating to directly or indirectly:
This indemnification obligation shall apply regardless of the theory of liability, including claims of concurrent or contributory negligence, and regardless of whether RAM was negligent or otherwise at fault, except to the extent a court of competent jurisdiction issues a final, non-appealable judgment finding that the claim arose solely and directly from RAM's willful misconduct.
Buyer's indemnification obligations shall survive the completion, expiration, or termination of any order or these Terms.
RAM shall retain all right, title, and interest in and to its confidential and proprietary information ("Confidential Information"). Confidential Information includes, without limitation, pricing, specifications, drawings, designs, technical data, processes, samples, business plans, Buyer information, financial information, and any other information disclosed by RAM to Buyer that is reasonably understood to be confidential by its nature or under the circumstances of disclosure.
Buyer agrees to use Confidential Information solely for the purpose of evaluating, purchasing, or using RAM's goods and/or services, and to protect such Confidential Information from unauthorized use or disclosure using at least the same degree of care Buyer uses to protect its own confidential information, but in no event less than reasonable care. Disclosure shall be limited to Buyer's employees, agents, or representatives who have a legitimate need to know such information and who are bound by confidentiality obligations no less restrictive than those set forth herein.
Confidential Information shall not include information that:
Confidential Information is provided "AS IS" and without representation or warranty of any kind. Nothing herein shall be deemed to grant Buyer any license or other right to Confidential Information except as expressly set forth herein. The exchange of Confidential Information does not obligate either party to enter into any further transaction or relationship.
In the event Buyer is required by law, regulation, or court order to disclose Confidential Information, Buyer shall, to the extent legally permitted, provide RAM prompt written notice and cooperate with RAM in seeking protective treatment or other appropriate remedies.
Buyer acknowledges that unauthorized use or disclosure of Confidential Information may cause RAM irreparable harm for which monetary damages may be inadequate. RAM shall be entitled to seek injunctive or equitable relief, in addition to any other remedies available at law or in equity, without the requirement to post bond.
Buyer's confidentiality obligations shall survive completion, expiration, or termination of any transaction and shall remain perpetual and irrevocable, except that obligations with respect to information that does not constitute a trade secret shall remain in effect for five (5) years following the last disclosure of Confidential Information. With respect to trade secrets, confidentiality obligations shall continue for so long as such information remains a trade secret under applicable law.
Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term or obligation hereunder (except for Buyer's obligation to make payments when due), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's reasonable control (a "Force Majeure Event").
Force Majeure Events include, without limitation:
The impacted party shall use commercially reasonable efforts to resume performance as soon as practicable following the cessation of the applicable Force Majeure Event. Any delivery dates or performance schedules affected by a Force Majeure Event shall be extended for a period equal to the duration of the delay, and such delay shall not entitle Buyer to cancel the order or withhold payment or assert any claim for damages. If a Force Majeure Event continues for more than ninety (90) days, RAM may, at its sole option, terminate the affected order without liability to Buyer, and Buyer shall pay for all goods delivered and services performed through the date of termination, including costs incurred in anticipation of performance. RAM may also adjust pricing to reflect increased costs resulting from the Force Majeure Event.
Buyer agrees to comply with all applicable United States export control laws and regulations concerning the export and re-export of RAM's goods, software, technology, and documentation, including, without limitation, those administered by the U.S. Department of Commerce, the U.S. Department of the Treasury, and the U.S. Department of State.
Buyer shall be solely responsible for obtaining, maintaining, and paying for any permits, licenses, or other governmental authorizations required for the importation, exportation, or re-exportation of any goods, technology, or documentation, and for compliance with all applicable laws and regulations of the country of importation or re-export.
These, and any order, quotation, or transaction subject hereto, shall be deemed to have been entered into in the State of Nevada, and all matters arising out of or relating to the goods, services, or this Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without giving effect to any principles of conflicts of laws.
The United Nations Convention on Contracts for the International Sale of Goods (CISG) and any legislation implementing or applying the CISG in any jurisdiction are hereby expressly disclaimed and shall not apply to these Terms or any transaction between Buyer and RAM.
Any action, suit, or proceeding arising out of or relating to the goods and/or services, these Terms, or any order issued hereunder shall be brought exclusively in a state or federal court located in Carson City, Carson County, Nevada, and the parties hereby irrevocably submit to the exclusive jurisdiction and venue of such courts and waive any objection based on improper venue or forum non conveniens. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS, ANY ORDER, OR THE GOODS OR SERVICES.
These Terms constitute the entire agreement between Buyer and RAM with respect to the subject matter hereof and supersede all prior or contemporaneous agreements, negotiations, representations, or understandings, whether written or oral, except as otherwise expressly stated in a mutually executed written agreement signed by authorized representatives of both parties.
RAM reserves the right to update or modify these Terms from time to time in its sole discretion. Any such updates shall be effective upon posting to RAM's website or otherwise making the updated Terms available to Buyer. The Terms in effect at the time of Buyer's order, acceptance of goods, or use of services shall apply to that transaction. Buyer's continued purchase of goods or services following such updates constitutes acceptance of the revised Terms.
Except as set forth above, no change in, waiver of, or modification of these Terms shall be binding upon RAM unless set forth in a written document expressly referencing these Terms and signed by a duly authorized representative of RAM. RAM's failure to enforce any provision of these Terms shall not be deemed a waiver of future enforcement of that or any other provision.
In the event RAM employs or retains legal counsel to enforce or defend any of its rights under these Terms, to collect amounts due, or in connection with any dispute arising hereunder, Buyer agrees to be responsible for all attorneys' fees, costs, and expenses incurred by RAM, whether incurred prior to litigation, during litigation, at trial, on appeal, or in connection with post-judgment enforcement. Any claim by Vendor must be submitted within ten (10) days or is waived.
Buyer shall, at its sole cost, obtain and maintain during the term of any order and for a period of two (2) years thereafter, insurance of types and in amounts sufficient to cover Buyer's obligations under these Terms, including without limitation:
Upon RAM's request, Buyer shall provide certificates of insurance evidencing such coverage and shall name RAM Enterprise, Inc. as an additional insured on all applicable policies. Such insurance shall be primary and non-contributory and shall contain a waiver of subrogation in favor of RAM.
Buyer shall not assign, transfer, or delegate any order, or any rights or obligations arising under these Terms, whether by contract, operation of law, change of control, merger, or otherwise, without the prior written consent of RAM, which may be withheld in RAM's sole discretion. Any attempted assignment without such consent shall be null and void. RAM may freely assign or delegate its rights and obligations under these Terms, in whole or in part, to any affiliate, successor, or assignee without Buyer's consent.
RAM may, at any time and without notice to Buyer, set off, recoup, or deduct any amounts owed by Buyer to RAM or any of RAM's affiliates under these Terms or any other agreement, transaction, or obligation, whether or not such amounts are then due and payable, against any amounts owed by RAM to Buyer.
The following provisions shall survive the completion, expiration, cancellation, or termination of any order and these Terms: Payment; Security Interest; Taxes; Warranty; Limitation of Liability; Indemnification; Confidentiality; Insurance; Assignment; Setoff; Governing Law; Venue; Attorneys' Fees; Costs of Collection; and any other provision that by its nature is intended to survive.
These Terms are for the sole benefit of RAM and Buyer and do not confer any rights, benefits, or causes of action upon any third party. No third party shall have any right to enforce any provision of these Terms.
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