The following terms and conditions are applicable to all agreements between Rack ‘N Stack, Inc., (“Company”) and its customers. These terms and conditions (“Terms”) supersede all conflicting terms, conditions, or other provisions of any agreements, purchase orders, or other documents comprising the purchase of any or all of Rack ‘N Stack’s products (“Products”) of services (“Services”) provided to or purchased by customer (“Customer”). By receiving or purchasing Products/Services from Rack ‘N Stack, Customer agrees to all of these terms:
1. Purchase Orders.
Company will fulfill purchase orders made by Customer, which shall indicate the specific products, specifications, quantity, price, total purchase price, shipping instructions, requested delivery dates, Bill To and Ship To addresses, applicable tax exemptions, and any other special instructions. Customer’s purchases or orders for Products or Services (“Orders”) shall be subject to Company’s availability. Contingencies in POs are not binding until accepted by Company. All POs are subject to acceptance by Company. Customer agrees and acknowledges that Purchase Order terms shall not supersede any of these Terms herein nor the terms of any other agreement(s) governing Customer’s relationship with Company. Products are subject to availability. Company may periodically change, alter, or discontinue the Products and/or their designs, and manufacture and distribution thereof, without accountability to Customer. Availability dates are estimates only. Company will use its best efforts to maintain these estimates. Company may cancel any order or any part of an order without cause at any time and without penalty, and Company’s sole obligation will be the return of any payment already paid by Customer.
2. Orders, Prices, and Taxes.
Prices are determined by Company’s price list current at the time of the order and are subject to change without notice. Prices include sales taxes, duties, and other fees only when specified. California Sales tax is charged on orders unless Customer provides a valid Reseller Certificate or Seller’s Permit, or the sale is a wholesale sale to an out-of-state entity. Unless otherwise specified, Company charges local and state sales tax to shipments to Los Angeles, California and the State of California.
3. Terms of Payment.
Payment in full is due before shipment of the Products absent agreement to the contrary. If payment is not made before shipment, payment shall be Net on Invoice absent agreement to the contrary. Customer shall pay all applicable duty, sales tax, shipping, handling, freight, and other charges. Company may withhold shipment (including partial shipments), require pre-payment of future orders, security or other adequate assurances, or suspend performance of any order, in the event payment is not made on Products in a timely fashion.
4. Delivery.
Products will be shipped to Customer’s address provided, freight collect. Freight will be prepaid and added to the invoice based on quoted rates provided at point of order confirmation. Customer may arrange for the pick-up and/or shipment of the Products, from Company’s offices, separately, on terms agreeable to Company. Company may deliver the Products in installments. Each installment may be invoiced separately, each invoice is to be paid when due, without regard to delivery or non-delivery of subsequent installments. Delivery dates provided by Company or the shipment carrier are estimates based on current and anticipated availability. Company shall not be liable in any way for any loss of sales, profits, or any other claim, loss, damage, or expense of any kind or nature to Customer in the event of delivery of the Products being prevented or delayed for any reason, including but not limited to strikes, riots, lockouts, trade disputes, acts of restrain of governments, and/or the imposition of restrictions on importation or from any other cause not within the control of the Company, including specifically cancellation, delays, or refusals to fulfill orders by the manufacturers of the Product(s) ordered by Customer (collectively, “Force Majeure”).
5. Inspection and Acceptance.
In case any item is defective in material or workmanship, or otherwise not in conformity with the specified requirements of this order, Customer shall notify Company in writing promptly and no later than 3 days after receiving the delivery; otherwise, Customer shall be deemed to have accepted the Products. Upon written notice of non-acceptance of Products, Company shall promptly repair, replace, or cancel the Order, at its option. Damage visible upon delivery must be reported to Company by Customer within 3 days of receipt or the Product will be deemed to have arrived undamaged and in good condition. Customer’s written report of damage or defect shall include original purchase information; a narrative description of the reported damage; and pictures of (a) the product damage; and (b) the product container, crate, or box. Concealed damage, damage not evident from looking at the unopened package, must be reported within 3 days of receiving delivery.
6. Change Orders, Returns, and Cancellations.
All changes to Orders by Customer shall be made in writing and effective only upon approval thereof by Company. Products may not be returned to Company without its written consent and an RA (Return Authorization) Number, and returns are only accepted by Company for new-in-box, unopened, and unused Products with packaging and factory seals that are unbroken and intact. Customer is responsible for all return costs and a restocking fee of 25%. Returns must be received in undamaged condition, in new condition and good working order. Company will not accept returns that do not comply with these guidelines. No returns are accepted for custom orders. Please be sure returns are well-packaged, handled with care, and insured. In the event Customer (a) cancels all or part of any order, including making a reduction of quantity, (b) fails to meet any material obligation hereunder, including failure or refusal to make timely payments, causing Company to cancel or reschedule any order of portion thereof, (c) requests a rescheduling of scheduled Products and the request is accepted by Company, or (d) requires changes to the Products, Customer will pay all cancellation fees or rescheduling charges associated therewith, including a 25% restocking fee.
7. Risk of Loss.
Risk of loss shall pass to Customer when Products are placed into the possession of a shipment carrier. Damage to any of the Products in transit, without regard to whether which party paid the shipping charges or whether any third party is designated as consignee thereof, is Customer's, and whose responsibility it will be to file claims with the carrier.
8. Installation.
Company does not provide installation of the Products, and recommends installation and servicing of the Product(s) are to be performed by qualified professionals. Company is not responsible for the actions, including negligence, of any installer(s), contractors, or service providers attempting to install the Product(s), nor any loss, claim, damage, injury, expense, or other liability resulting therefrom.
9. Security Interest.
Company reserves a security interest in the Products sold to Customer until payment in full therefor is received from Customer. Customer shall execute all documents and financing statements necessary to permit Company to perfect such security interest upon Company’s request.
10. Title.
Company retains any transferable title and/or any applicable licenses to the Products until Customer has performed all of the obligations due and owing to Company under the agreement between the parties and until the purchase price of the Products has been fully paid. Notwithstanding the foregoing, the sale of Products or provision of Services by Company does not convey any license, ownership, or title to Customer beyond that issued to Customer by third party owners. Company expressly reserves all its rights not otherwise granted to Customer.
11. No Resale.
No Consumer Goods/Services. Customer represents and warrants to Company that Customer is the actual intended user of the Products/Services ordered from Company and that none of the Products/Services are being ordered from Company for resale purposes, and that Customer is not a reseller. Customer also represents and warrants that none of the Products or Services are primarily for personal, family, or household purposes.
12. Confidential Information.
Company and its employees, contractors, and agents retain for themselves all proprietary rights in and to confidential data belonging to Company pertaining to the Products and Services which are provided to Customer under the agreement between the parties. Customer will not copy, duplicate, reverse engineer, reverse compile nor attempt to derive the composition or underlying information of any of confidential or proprietary information of Company. Customer will keep confidential all of Company’s proprietary or business information and will not without Company’s permission publish, disclose or otherwise make available, directly or indirectly to any person.
13. Nature of Relationship.
Company is a vendor with respect to Products and an independent contractor with respect to any Services; and nothing herein shall be construed to create a partnership, joint venture, agency, franchise, nor employee relationship. Neither Customer nor any of its agents or employees will have any right or authority to assume or create any obligation of any kind, whether express or implied, on behalf of Company.
14. Limited Warranty.
1-year limited warranty against defects for refurbished Products. COMPANY DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE INCLUDING ANY WARRANTIES OF TITLE AGAINST LIENS, INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT THE PRODUCTS ARE COMPATIBLE WITH ANY COMBINATION OF PRODUCTS NOT FURNISHED BY COMPANY WHICH CUSTOMER MAY CHOOSE TO CONNECT TO THE PRODUCT, ARISING FROM A COURSE OF DEALING USAGE OR TRADE PRACTICES, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. COMPANY NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF SERVICES.
15. Limitation of Liability.
COMPANY'S LIABILITY UNDER OR FOR BREACH OF THIS AGREEMENT WILL BE LIMITED TO REFUND OF THE PURCHASE PRICE. IN NO EVENT WILL COMPANY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY CUSTOMER. IN NO EVENT WILL COMPANY BE LIABLE FOR DELAY OF ANY TYPE, NOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE. CUSTOMER HAS ACCEPTED THE DISCLAIMER OF LIABILITY FOR DAMAGES AS PART OF A BARGAIN TO LOWER THE PRICE OF THE PRODUCTS AND SERVICES, AND UNDERSTANDS FURTHER THAT THE PRICE OF THE PRODUCTS AND SERVICES WOULD BE HIGHER IF COMPANY WERE REQUIRED TO BEAR ADDITIONAL LIABILITY FOR DAMAGES.
16. Default and Remedies.
Customer shall be in default of this agreement if Customer fails to make any payment, obligation, covenant, or liability owed to Company, if Customer makes any false representations or statement made or furnished to Company by or on behalf of Customer, or otherwise breaches any provision in these Terms. In the event Company reasonably believes that the prospect of payment or any indebtedness secured by this Agreement or the performance of Agreement is impaired; or Customer’s death, dissolution, termination of existence, insolvency, business failure, appointment of a receiver, assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency law is imminent, Company may terminate all open purchase orders and otherwise suspend all Products/Services to Customer. On the occurrence of any event of default, and at any later time, Company may declare all obligations under its agreement with Customer due and payable immediately and may proceed to enforce payment and exercise any and all of the rights and remedies available at law or in equity possessed by Company.
17. Export Regulations.
All Products/Services pursuant to this Agreement are subject to U.S. export control laws, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export or import as may be required after delivery to Customer.
18. California Law Applies.
Prevailing Party. These Terms will be governed by and construed in accordance with the law of the State of California. In any proceeding brought to enforce this Agreement, including but not limited to Customer’s payment for Products/Services, or defend against such proceeding, Company shall be entitled to its reasonable attorneys’ fees and costs.
19. Severability.
Each provision of this agreement is severable. If any of its provisions are determined to be invalid or in conflict with any existing or future law or regulation, that provision will not impair the operation of the remaining provisions of this agreement. The invalid provisions will be considered not to be a part of this agreement.
20. Amendments.
These Terms may not be modified except in writing signed by both parties bearing their signatures; and purchase orders shall not be effective in amending or superseding these Terms. Company may amend, modify, alter, change, and/or update these Terms, from time to time, including to comply with state/federal laws or regulations or for other reasons, that it is Customer’s duty and obligation to read, understand, and comply with these items, and that Customer understands that Customer’s purchase orders of Products from Company will include an agreement to these Terms in effect at the time of such purchase orders.
21. Jurisdiction.
Company may ship products throughout the U.S. and worldwide. Shipments sent by Company to Customers in locations other than the State of California, U.S., shall not confer personal jurisdiction of any court or tribunal over Company; and Customer agrees that Customer’s receipt of Product(s) from Company at Customer’s address or any other address shall not confer personal jurisdiction upon Company to the courts or tribunals of Customer’s forum or locale.