Sales Terms

Rapiscan Webstore Terms and Conditions

1. You and Your Organization. Purchasers on the Rapiscan webstore may be individuals submitting orders on their own behalf or they may be employees or agents submitting orders on behalf of their company, government agency or other organization.  All references throughout this document to words like “you” and “your” shall be deemed to mean you personally, if you are submitting an order as an individual on your own behalf, or shall mean the company, government agency or other organization on whose behalf you are placing an order.  In the latter case, you represent and warrant that you are duly authorized by such company, government agency or other organization to place such order and to enter into the binding legal agreements contained in these Rapiscan Webstore Terms and Conditions.
2. Agreement.
   • Agreement. These Webstore Terms and Conditions (“Terms”) govern the sale of products that you purchase from Rapiscan on this website (“Products”). These Terms and the order that you place on this website shall be collectively referred to herein as the “Agreement.”
   • Entire Agreement. The Agreement constitutes the entire agreement between Rapiscan and you regarding the subject matter of the Agreement and may not be modified except in a writing signed by a duly authorized employee of Rapiscan.
3. Products and Services. You agree to purchase from Rapiscan and Rapiscan agrees to sell the Products to you in accordance with the terms and conditions of this Agreement.
4. Delivery and Acceptance.
   • Delivery and Risk of Loss; Title. All Products shall be delivered Free Carrier (FCA) (Incoterms 2010) at Rapiscan’s manufacturing location. Title and risk of loss or damage to Products pass to you at such location.
   • Dates. Rapiscan’s delivery and performance dates are estimates only. Rapiscan will use commercially reasonable efforts to deliver in accordance with the delivery or performance dates specified in the Rapiscan Sale Document, but may change those dates as it deems necessary. Rapiscan shall not be liable for failure to deliver or perform by such dates.
   • Acceptance. All Products shall be deemed accepted by you upon delivery, in the case of Products, or upon performance, in the case of Services.
5. Warranty.
   • Warranty Terms. Rapiscan warrants to you (and to no other party) that that the Product(s) shall conform substantially to Rapiscan’s then-current applicable specifications for the Product(s).  The Products shall be free from defects in material and workmanship for a period of 90 days from delivery.  Defects in a repaired or replaced Product shall be covered to the extent of the unexpired term of the applicable warranty period.
   • Limitations. The warranty set forth above shall not apply if (i) Rapiscan is unable to reproduce the defect or error reported by you; (ii) you have failed to use the Product in accordance with Rapiscan’s manuals, instructions and/or other procedures that Rapiscan has made available to you or that it makes available to purchasers of the Product generally; (iii) you have failed to report a defect or error within ten (10) days of its first occurrence and in accordance with the procedures established by Rapiscan to identify and report such problems to Rapiscan’s Customer Service Department; (iv) the Product has been repaired or modified without Rapiscan’s prior written consent (g., by a technician that is not, at the time of such modification, certified by Rapiscan’s Customer Service Department to perform such work); (v) parts (including consumable parts) that have not been authorized for use by Rapiscan’s Customer Service Department have been installed on or used with the Product; (vi) the Product has been damaged by neglect, misuse, mishandling, failure of electrical power, user error, liquids, or as a result of any other cause external to Product; (vii) the Product was damaged during shipment from you to a Rapiscan repair facility or location; (viii) you have failed to timely pay, in whole or in part, any amount due to Rapiscan; or (ix) you are in breach of the Agreement or any other agreement between you and Rapiscan (this statement shall not be construed to limit any other rights or remedies available to Rapiscan for any such breach).
   • Exclusive Remedies. You must report to Rapiscan in writing any breach of the warranties contained in this Section 5 during the relevant warranty period. Your sole and exclusive remedies, and Rapiscan’s entire liability, shall be to correct the error or defect that caused the breach of warranty or, if Rapiscan is unable to make the Product operate as warranted, the replacement of the defective Product or return of the purchase price (at Rapiscan’s election). 
   • Disclaimer of Warranties. EXCEPT AS SET FORTH IN THIS SECTION 5, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RAPISCAN DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE OR SAMPLES SUPPLIED.  RAPISCAN DOES NOT WARRANT THAT THE PRODUCTS WILL OPERATE AS REQUIRED WITHOUT INTERRUPTION, DELAY OR ERROR.  RAPISCAN DOES NOT WARRANT ANY “UP-TIME” OR “DOWN-TIME” OF ANY PRODUCT OR RELATED EQUIPMENT.
6. Price and Payment.
   • Price. The price(s) for Products covered by this Agreement are those prices set forth on the Rapiscan webstore at time of purchase.
   • Charges. All amounts charged by Rapiscan under this Agreement shall be due at time of purchase.
   • Taxes. You shall, in addition to any other amounts payable under this Agreement, be responsible for paying all sales, use, VAT, duties, excise or other taxes (and all interest and penalties) applicable to the sale, importation, transportation or use of the Products (other than amounts due on Rapiscan’s net income from such sale or use).
   • Notice of Payment Dispute. Subject to applicable law, if you intend to dispute any amount due under or related to this Agreement, you must notify Rapiscan in writing within 30 days of the date such payment is originally due. You waive your right to dispute such amounts or to bring or participate in any legal action involving a dispute of such amounts if not reported within such period.
7. Cancellation/Delay.
   • No Cancellations or Delays by you. You may not terminate, cancel, delay or reschedule any delivery of Products without Rapiscan’s written consent.  Such consent may be granted or withheld in Rapiscan’s sole discretion.  Such consent may be conditioned by Rapiscan on, among other things, prompt payment by you to Rapiscan for direct or indirect amounts arising under or related to the cancellation, delay or rescheduling.
   • Excusable Delay. Rapiscan shall not be responsible for any delay or non-performance of its obligations hereunder to the extent and for such periods of time as such delay or non-performance, defective performance or late performance is due to causes beyond its control. Excusable delays include, but are not limited to, acts of God, war, acts of any government in either its sovereign or contractual capacity (including delays or failures by any government to grant export licenses), fire, explosions, sabotage, the elements, epidemics, pandemics, quarantine restrictions, strikes, lockout, embargoes, severe weather, delays in transportation, airline schedule, fuel shortages, or delays of suppliers or subcontractors.
   • Cancellation by Rapiscan. Rapiscan may terminate or cancel this Agreement, in whole or in part, at any time, with our without cause, by delivery of written notice to you. 
8. Limitation of Liability. Rapiscan’s total liability arising out of or in connection with this Agreement shall be limited to the total price actually paid by you for the Products covered by the Agreement. The parties acknowledge that the limitations of liability in this Section 8 and in the other provisions of the Agreement and the allocation of risk herein are an essential element of the bargain between the parties, without which Rapiscan would not have entered into the Agreement. Rapiscan’s pricing reflects this allocation of risk and the limitation of liability specified herein.
9. No Indirect or Consequential Damages.  RAPISCAN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, USE OR COST OF SUBSTITUTE PROCUREMENT, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, EVEN IF RAPISCAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE.
10. Reciprocal Waiver of Claims. As the Products may be deployed in defense against or to assist in the detection of an Act of Terrorism (as such term is defined under the Support Anti-terrorism by Fostering Effective Technologies Act of 2002) before it occurs, Rapiscan and you each agree to waive all claims against the other (including those of or against their officers, directors, employees, subsidiaries, affiliates, agents, subcontractors or other representatives) for losses, including business operation losses, resulting from or related to such Act of Terrorism.
11. Indemnification. You shall indemnify and hold harmless, and at Rapiscan’s request defend, Rapiscan and its subsidiaries and affiliates (and its and their officers, directors, shareholders, managers, employees and agents) from and against any and all demands, claims, actions, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to (i) any breach (or claim or threat thereof that, if true, would be a breach) of this Agreement by you, including, without limitation, any breach or alleged breach of any of your representations or warranties, (ii) any negligence or intentional misconduct of you or any officer, director, employee or agent of your organization or (iii) the negligence or intentional misconduct of any user (or supervisor(s) of any user) of any Product.
12. Miscellaneous Provisions.
    • Independent Contractors. Each of Rapiscan and you is an independent contractor and neither party’s personnel are employees or agents of the other party.  The Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties shall at all times be and remain independent contractors.  Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.
    • No Third Party Beneficiaries. It is not the intention of the parties to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed to confer upon any third party other than the parties hereto a right of action under this Agreement or in any manner whatsoever.
    • Proprietary Rights. Rapiscan retains all rights, title and interest in and to the Intellectual Property Rights in the Products and any derivative works thereof.  Your do not acquire any other rights, express or implied, in the Products. “Intellectual Property Rights” means patent, copyright, trademark, trade secret and any other intellectual property rights.
    • Notice. Any notice (other than routine reports regarding Product delivery and performance) required or permitted hereunder shall be in writing, shall reference this Agreement and shall be deemed to be properly given: (i) when delivered personally; (ii) two days after deposit with a private industry express courier, for next day delivery, with written confirmation of delivery; or (iii) four days after having been sent by registered or certified mail, return receipt requested, postage prepaid.  All notices sent by Rapiscan shall be sent to the address that you have entered when registering on or submitting an order through the Rapiscan webstore.  All notices sent by you shall be sent to the Rapiscan contact address set forth on the Rapiscan webstore, or to such other address or person as may be designated by Rapiscan by giving written notice to you pursuant to this Section.
    • No Assignment. You shall not be permitted to assign this Agreement, by operation of law or otherwise, without the express written consent of Rapiscan.
    • No Amendment.  This Agreement may not be modified or amended except pursuant to a writing, signed by a duly authorized officer of each of Rapiscan and you.
    • Remedies. The remedies described in various sections of the Agreement shall not be deemed the exclusive remedies available to Rapiscan and Rapiscan shall, in addition to all such remedies, be entitled to all other remedies available to it under law.
    • Governing Law. The Agreement shall be construed in accordance with and governed by the internal laws of the State of California, U.S.A., without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. The Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
    • Venue. Except for matters of injunctive relief, for which either party may initiate proceedings in any court of competent jurisdiction, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be finally and exclusively determined by binding arbitration. The number of arbitrators shall be one.  The place of the arbitration shall be Los Angeles County, California.  If your household or organization is located or headquartered in the United States, the arbitration shall be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules.  If your household or organization is located or headquartered outside of the United States, the arbitration shall be administered by the International Centre for Dispute Resolution in accordance with its International Rules.  Judgment on the award rendered by the arbitration proceeding may be entered in any court of competent jurisdiction.
    • Credit. Rapiscan’s performance under this Agreement shall at all times be subject to Rapiscan’s approval of your credit. Without limiting its other rights and remedies available under this Agreement or pursuant to law, Rapiscan shall be permitted to suspend deliveries (required by the terms of the Agreement or under any other agreement between Rapiscan and you) and to suspend the performance of services (including warranty services or otherwise, and whether required by the terms of this Agreement or under any other agreement between Rapiscan and you) and shall be permitted to impose such other terms and conditions or security arrangements as Rapiscan, in its sole discretion, deems appropriate to ensure full payment by you for the Products and Services.
    • Costs of Collection and Other Legal Fees. You shall reimburse Rapiscan, upon demand, for all expenses incurred by Rapiscan in collecting any amounts past due under this Agreement, including, without limitation, collection agency fees, attorneys’ fees, and arbitration or court costs. If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a voluntary dismissal by the party instituting the action, shall be entitled to the full amount of all expenses, including all court costs, arbitration fees and attorneys’ fees paid or incurred.
    • Export Administration. You acknowledges that export and re-export of the Products is subject to compliance with export control laws, including, but not limited to, the Export Administration Act, the Arms Export Control Act, the International Traffic in Arms Regulations (ITAR) and other export controls of the United States of America as amended from time to time, the Export Control Act 2002, the Export Control Order 2008, EU Regulation 428/2009 and the Customs and Excise Management Act 1979 and other export controls of the United Kingdom as amended from time to time, and the Strategic Trade Act 2010 and other export controls of Malaysia as amended from time to time (collectively, the “Export Laws”). You covenant that you shall complete, sign and deliver all documents necessary to facilitate the issuance of any export licenses required for any delivery, export and re-export of the Products and related technical data and documentation. In addition, you covenant that you shall comply with all export-related instructions provided to you by Rapiscan regarding the receipt, handling, use and storage of Products. You shall not export or re-export any products, software, technical data, or documentation associated with the Products (including, but not limited to, processes, services, data, and reports derived from the use of the Products) to any country or person to which export or re-export of such items is prohibited by any of the Export Laws without first obtaining the written permission of Rapiscan and from the U.S., U.K. and/or Malaysian government (as applicable).  Rapiscan shall have the right to delay shipments or terminate the Agreement, in whole or in part, and without liability, should Rapiscan not obtain in a timely way all required export licenses and approvals necessary to export the Products.  Shipment and delivery timing is also conditioned upon you obtaining, and providing requested evidence to Rapiscan of, all licenses, permits and other governmental authorizations required to receive, handle, use and store the Products (including all radiation producing parts, components or sources) that are required by the countries or local territories through which the Products (including all radiation producing parts, components or sources) may transit, be stored, operated or otherwise used.  You represent and warrants that your export privileges are not, and have not within the last five years been, denied, suspended or revoked in whole or in part by any government, including any agency or department of the U.S., U.K. or Malaysian government.  You further represent and warrant that your name (including any former name) and the name of any current or former director, officer or employee of the company, government agency or other organization on whose behalf you are entering into this Agreement, do not appear, and have not within the last five years appeared, on any lists maintained by the U.S., U.K. or Malaysian government identifying parties who are subject to export denial orders or who are otherwise restricted or prohibited by such governments from engaging in export transactions.
    • Permits and Licenses. You shall be required to obtain and maintain all registrations, licenses, permits and/or approvals from relevant authorities, as may be necessary to store and operate the Products supplied by Rapiscan.
    • Disposal. If you elect to dispose of the Products, including any appurtenant components, parts and materials, you covenant that it shall do so fully in accordance with all applicable laws and regulations regarding the disposal of such items.
    • Suspended or Debarred Parties. You represent, warrant and covenant that you, including your consultants and agents and your and their officers, directors and employees, are not presently, and have not within the past five years, been debarred, suspended or proposed for debarment by any agency or department of the United States Government or otherwise declared ineligible by any agency or department of the United States Government for award of contracts or subcontracts.  You covenant that you shall provide Rapiscan immediate written notice if you, including any of your consultants or agents or any of your or their officers, directors or employees, hereafter become debarred, suspended or proposed for debarment by any agency or department of the United States Government or otherwise declared ineligible for award of contracts or subcontracts by any agency or department of the United States Government.
    • No Waiver.  The waiver by either party of a breach of or a default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
    • Severability. If for any reason a court or arbiter of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
    • Construction. The Agreement shall be interpreted fairly in accordance with its terms and without any construction in favor of or against either party.

 [End of Terms]

 

Webstore Sales TC's.200404