Terms and Conditions of Sale
Offer. These Terms and Conditions of Sale and any terms contained in any applicable quotation, sales order acknowledgement, or invoice issued by REXING INC. (“Rexing”) (the “Additional Terms”) together constitute an offer made by Rexing to Customer. These Terms and Conditions of Sale and the Additional Terms together shall constitute the entire “Agreement” between Rexing and Customer and shall supersede any and all prior communications or agreements between the parties with respect to the purchase and sale of products covered hereby. These Terms and Conditions of Sale and the Additional Terms are integral parts of such Agreement and shall apply to all purchases made by Customer from Rexing. This Agreement is subject to Rexing’s credit approval of Customer. Any samples, drawings, descriptive matter or advertising provided by Rexing and any descriptions or illustrations provided in Rexing’s catalogues, brochures or websites are specifically for information purposes only, and shall not be binding upon Rexing.
Prices; Quotations; Other Charges. Unless otherwise stated by Rexing, all prices are in United States dollars. Any written quotations automatically expire thirty (30) days from the date issued and are subject to termination by notice within that period. Unless otherwise expressly provided in this Agreement, the prices quoted or referred to in any accompanying invoice (the “Invoice”) shall not include any charges for freight, transportation, customs or duties, tariffs, taxes (whether sales, use, import, or other taxes of any nature whatsoever), inward remittance/bank charges, insurance, or any other charges relating to the sale, transportation, and shipment to, or use by, Customer of the products sold hereunder. Such charges and/or taxes shall be the sole responsibility of, and shall be borne exclusively by, Customer. Wherever applicable, any such charges and/or taxes will be added to the Invoice as a separate charge to be paid by Customer. If Rexing is required to pay any such charges and/or taxes, Customer agrees to reimburse Rexing for any amounts so paid upon demand. Any purchase order accepted by Rexing may be modified, cancelled or terminated by Customer only with Rexing’s written consent.
Payment Terms. Unless otherwise agreed by the parties in writing, all Invoices shall be submitted by Rexing to Customer upon acceptance by Rexing of the purchase order and shall be immediately payable in full. Unless otherwise agreed by Rexing, all payments due to Rexing hereunder shall be paid by credit card, debit card, PayPal or wire transfer for total order amounts less than $2,000.00 and by wire transfer only for total order amounts equal to and greater than $2,000.00 in accordance with the instructions contained in the Invoice. Orders will not be shipped until payments have cleared with the applicable financial institution. Rexing reserves the right to retry failed payments to complete the transaction.
Validating Customer’s Order. Information provided to Rexing when an order is placed, such as billing/shipping address and phone number, will be used to verify Customer’s payment. Incorrect information will result in a delay in processing and may impact the final shipping date of the order. Orders in which sufficient information cannot be verified may be cancelled; however, Rexing reserves the right to cancel any order at any time without giving any reason. Rexing’s issuance of an order confirmation, whether electronic or other form, does not signify Rexing’s acceptance of the order, nor does it constitute confirmation of Rexing’s offer to sell. Rexing reserves the right at any time after receipt of an order to accept or decline the order and/or to limit quantities on any order, without giving any reason. [Rexing reserves the right to limit or prohibit sales to resellers.]
Shipment and Delivery. This offer is made with the understanding that it is subject to inventory availability. All shipping and handling expenses are the sole responsibility of Customer. Delivery dates are estimates only and are based on normal shipping conditions (shipping conditions and actual shipping dates may vary). Rexing will endeavor to meet all estimated delivery dates indicated on the order confirmation; provided, however, that Rexing reserves the right to change any and all such delivery dates subject to Rexing’s availability schedule without notice and without liability to Customer. Method and route of shipment are at Rexing’s discretion unless Customer chose shipment options other than Rexing’s standard shipment with respect thereto. All shipments are made at Customer’s risk. Non-delivery by Rexing as to any product shall not be deemed a breach of this Agreement. Any non-delivery shall not relieve Customer from its obligation to accept or be responsible for any subsequent or prior shipment. All shipments shall be packaged in accordance with Rexing’s standard and customary packaging practices. Rexing retains the right, at its option, to cancel any order, in whole or in part, without any resulting liability to Customer or any third party.
Title and Risk of Loss. Title to and risk of loss and damage for any shipment of products shall pass to Customer immediately upon the earlier to occur of deposit with a common carrier or delivery of such shipment to Customer or its designated agent.
Acceptance; Rejection. Except as provided in this paragraph, Customer shall accept all products shipped in accordance with the terms and conditions of this Agreement. Customer may only reject defective products. In order to reject a shipment, Customer must give written notice (each, a “Rejection Notice”) to Rexing within thirty (30) days after receipt of the shipment, together with a reasonably detailed written statement of its reasons for rejection and alleged defect. If no such notice is received, then Customer shall be deemed to have accepted the shipment of the products and to have waived any and all claims with respect thereto. No claim of any kind (whether as to delivered products or for non-delivery of products, including claims of defective products and whether arising in tort or contract) shall be greater in amount than the purchase price of the products in respect of which such damages are claimed. Upon receipt of a Rejection Notice reasonably acceptable to Rexing, at its sole discretion, Rexing shall issue a Return Merchandise Authorization (“RMA”) to Customer. In no case shall Customer return products without first obtaining an RMA. Returned products must be delivered to Rexing, in their original packaging and be accompanied by Customer’s RMA. Customer must prepay shipping charges and insure the shipment or accept the risk if the products are lost or damaged in shipment. Refunds or credits do not include original shipping and handling charges. If Rexing disagrees with any alleged defect by Customer, then an independent party reasonably selected by Rexing shall analyze the products in question as may be necessary to substantiate whether the products rejected by Customer are defective. Both parties agree to cooperate with the independent party’s reasonable requests for assistance in connection with its analysis hereunder. Both parties shall be bound by the independent party’s results of analysis. The costs incurred by the parties shall be borne by the losing party. If Rexing or the independent party confirms the defect, Rexing shall, at its sole option, replace (if it has not already done so) the defective products with non-defective products as promptly as reasonably possible or, refund or credit to Customer the purchase price therefor.
Warranty. Rexing warrants exclusively that on the date of delivery by Rexing the products shall be free from defects in material and workmanship for a period of [twelve (12)] months from the shipment date. The products are sold without further warranties, guarantees, representations or promises.
Disclaimer. REXING’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR A BREACH OF ANY WARRANTY WITH RESPECT TO ANY PRODUCT SHALL BE, AT REXING’S SOLE OPTION, CREDIT OR REFUND OF THE PURCHASE PRICE OR REPLACEMENT OF THE DEFECTIVE PRODUCT. FURTHERMORE, ANY SUCH WARRANTY SHALL BE NULL AND VOID AND SHALL NOT APPLY TO ANY PRODUCTS WHICH ARE (i) IMPROPERLY STORED BY CUSTOMER, (ii) ALTERED, MODIFIED, DAMAGED, ABUSED, OR MISUSED (WHETHER INTENTIONALLY OR ACCIDENTALLY) BY CUSTOMER OR ANY PERSON OTHER THAN REXING, OR (iii) NOTWITHSTANDING ANY DEFECT, ARE USED OR OTHERWISE ACCEPTED BY CUSTOMER OR CUSTOMER WAIVES ITS CLAIM FOR REJECTION UNDER THE PROVISIONS OF THIS AGREEMENT. THE FOREGOING WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, AND REXING DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR USE AND/OR PARTICULAR PURPOSE.
Limitation of Liability. REXING SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUES, PROFITS, OR BUSINESS OF CUSTOMER OR ITS BUYERS, AGENTS, AND DISTRIBUTORS, RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH ANY PURCHASE, SALE, DISTRIBUTION, OR ANY USE OF ANY PRODUCTS OR FOR REXING’S FAILURE OF SUPPLY OF ANY PRODUCTS, FOR ANY REASON, WHETHER OR NOT REXING HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE MAXIMUM AMOUNT OF REXING’S CUMULATIVE LIABILITY FOR ANY LOSSES OR DAMAGES RECOVERABLE BY CUSTOMER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE TOTAL PURCHASE PRICE RECEIVED BY REXING FROM CUSTOMER FOR THE APPLICABLE PRODUCT.
Indemnification. Customer shall indemnify, defend, and hold Rexing harmless from and against any and all loss, cost, liability, and expense (including, without limitation, reasonable attorneys’ fees and costs) incurred and/or paid by Rexing resulting from or arising out of or in connection with (i) any claims asserted or actions filed against Rexing by a third party, including claims for personal injury or property damage, resulting from, arising out of or in connection with, Customer’s use of the products, or/and (ii) any representation or warranty made to any third party by Customer, its affiliates, agents, distributors, or employees about the products which is not expressly authorized by Rexing in writing.
Force Majeure. Except as otherwise expressly set forth herein, Rexing shall not be liable for any delay or for any consequence of any delay in the delivery of any products if such delay shall be due to acts of God, acts of terrorism, acts of a public enemy, changes in law, wars, floods, fires, storms, strikes, lockouts, pandemics, endemics, virus, significant interruptions of transportation, freight embargoes or failures, exhaustion or unavailability on the open market or delays in delivery of material, supplies, equipment, or services necessary for the performance of any provision hereof, or the happening of any material and reasonably unforeseeable act, misfortune, or casualty by which performance hereunder is delayed or prevented. If any such delay occurs, then (unless the cause thereof shall frustrate or render impossible or illegal the performance under this Agreement or shall otherwise discharge the same), Rexing’s period for performing its obligations shall be extended by such period (not limited to the length of the delay) as it may reasonably require to complete the performance of its obligation.
Assignment. Customer may not assign this Agreement or any of its rights or obligations hereunder without Rexing’s prior written consent and any purported assignment in violation of this provision will be void. This Agreement shall be binding upon and inure to the benefit of, and shall be enforceable by, the parties hereto and their permitted successors and assigns.
Severability. If any part of this Agreement shall be held unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and, to the extent permissible under applicable law, such unenforceable provision or provisions shall be deemed revised to the minimum extent possible to permit enforcement of such provision on terms as near as possible to such provision as originally drafted.
Governing Law; Forum; Enforcement. This Agreement and any disputes between the parties arising in connection herewith shall be governed by and interpreted in accordance with the laws of the State of New Jersey applicable to contracts made and to be performed entirely within such State, without regard to (and without application of) its laws, rules, and principles regarding conflicts of laws. All disputes arising out of this Agreement shall be resolved by a court of competent jurisdiction in the State of New Jersey and both parties hereby consent to the exclusive jurisdiction of the courts of the State of New Jersey and the Federal District Court for the District of New Jersey. In the event Rexing takes or maintains any action to enforce its rights hereunder and prevails, Customer shall reimburse Rexing for its reasonable costs and expenses incurred, including, without limitation, reasonable fees and disbursements of counsel and other advisors and professionals.
Cumulative Remedies. Rexing’s remedies herein are cumulative and in addition to any other or further remedies available to it at law or equity.
Waiver. Rexing’s failure to enforce any right provided herein or to which it is entitled at law or equity will not constitute a waiver of that right or of any other rights to which it is entitled.
Entire Agreement; Modification; Waiver. This Agreement contains the entire agreement of the parties regarding the subject matter hereof and supersedes all prior orders, purchase orders, proposals, agreements, understandings, and negotiations regarding the same. No modification of this Agreement shall be effective without Rexing’s written consent. Except as otherwise provided herein, in no event shall this Agreement be deemed amendable or amended except by a writing specifically referencing this Agreement and signed by Rexing and Customer. Any waiver by Rexing of strict compliance with any provision of this order shall not be deemed a waiver of any of Rexing’s rights, privileges, claims, or remedies hereunder (with respect to such provision or any other provision hereof), nor of Rexing’s right to insist on strict compliance with respect to such provision thereafter.