THE TERMS AND CONDITIONS CONTAINED HEREIN APPLY TO ALL PURCHASE ORDERS ENTERED INTO BY R-JET TEK. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS OR CONDITIONS ON BUYER'S PURCHASE ORDER, SPECIFICATIONS, OR OTHER DOCUMENTS ISSUED BY BUYER SHALL BE WHOLLY INAPPLICABLE AND SHALL NOT BE BINDING IN ANY WAY ON R-JET TEK. ACCEPTANCE OF BUYER'S OFFER IS EXPRESSLY MADE CONDITIONAL ON BUYER'S ASSENT TO THE TERMS AND CONDITIONS CONTAINED HEREIN. NO WAIVER OR AMENDMENT OF ANY OF THE PROVISIONS CONTAINED IN THESE TERMS AND CONDITIONS SHALL BE BINDING ON R-JET TEK UNLESS MADE IN A WRITING EXPRESSLY STATING THAT IT IS SUCH A WAIVER OR AMENDMENT AND SIGNED BY AN OFFICER OF R-JET TEK.
The prices for products and services covered hereunder shall be those agreed upon between the parties; provided, however, that if such prices are based on the purchase of a particular quantity of products and Buyer fails to purchase such quantity of products, R-Jet Tek shall have the right (in addition to any other remedies available at law) to collect from Buyer the difference between the price paid by Buyer for the products purchased and the price for such products commensurate with the quantity actually purchased by Buyer. In addition, R-Jet Tek reserves the right to require a minimum order amount, typically $30, and if Buyer fails to purchase the minimum order amount, R-Jet Tek reserves the right to assess a surcharge for such orders. Unless otherwise agreed upon between the parties, the prices stated herein do not include any taxes or customs duties. Buyer shall pay, in addition to the prices stated, the amount of any present or future taxes and/or customs duties applicable to the sale of products or performance of services, or in lieu thereof, Buyer shall supply R-Jet Tek with an appropriate tax exemption certificate.
3. TERMS OF PAYMENT
(a) All payments are due and payable 30 calendar days from the date of invoice, provided that all online orders are payable in advance by valid credit card or other payment permitted online by R-Jet Tek. All non-online orders shall be paid in cash, commercial check, PayPal, or credit card then accepted by R-Jet Tek. All amounts past due shall incur interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, whichever is less. All payments shall be made to R-Jet Tek at the address specified on the front of the invoice. If products or services covered by these terms and conditions are not delivered or performed at one time, Buyer shall pay for the quantity of products delivered or services performed. Each shipment shall be considered a separate and independent transaction. (b) All shipments, deliveries, and performance of work by R-Jet Tek shall at all times be subject to the credit approval of R-Jet Tek. As part of this credit approval, R-Jet Tek may at any time decline to make any shipments or deliveries, perform any work, and/or impose such other terms or conditions or security arrangements as R-Jet Tek, in its sole discretion, deems appropriate. (c) R-Jet Tek reserves and Buyer hereby grants R-Jet Tek a security interest in any products sold to the extent of the invoiced amount. If Buyer defaults under any obligation hereunder, Buyer agrees to make products available so that R-Jet Tek can repossess them without a breach of the peace. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement. Upon R-Jet Tek's request, Buyer will execute any documents to perfect R-Jet Tek's security interest in any products. R-Jet Tek, in its sole discretion, may suspend open account terms on all past due accounts and subsequent orders may be held until the account is paid current. A Fifty Dollar ($50) handling charge will be assessed on all returned checks.
4. TITLE AND DELIVERY
(a) All shipments by R-Jet Tek are F.O.B. R-Jet Tek's facility, or, if applicable, R-Jet Tek's subcontractor's facility. Title and risk of loss or damage to products shall pass to Buyer upon delivery to the common carrier at R-Jet Tek's facility, or, if applicable, R-Jet Tek's subcontractor's facility. Buyer shall pay for insurance on all shipments based on shipment value unless Buyer notifies R-Jet Tek in writing prior to shipment. (b) Buyer acknowledges and agrees that the delivery dates are estimates only and may be changed. R-Jet Tek will use commercially reasonable efforts to deliver in accordance with the delivery dates, however, R-Jet Tek will not be liable for failure to deliver as estimated. (c) In the event that R-Jet Tek's ability to supply products becomes constrained, for any reason whatsoever, R-Jet Tek may reduce quantities, delay shipments, or allocate products among its customers at its discretion. (d) Buyer may not cancel, push-out, or reschedule any purchase order placed with R-Jet Tek without R-Jet Tek’s prior written approval.
5. ACCEPTANCE AND WARRANTY
(a) Any product sold or provided by R-Jet Tek shall be deemed accepted by Buyer upon delivery. For a period of one year, unless a different warranty period is stated in any of R-Jet Tek’s published documents, from the date of invoice, R-Jet Tek warrants to Buyer that products delivered hereunder shall comply with the applicable R-Jet Tek Data Sheet, User Manual or the mutually agreed upon specifications and shall be free from defects in material and workmanship under normal use and service. Products which are "samples", "design verification units", and/or "prototypes" are sold "AS IS," "WITH ALL FAULTS," and with no warranty whatsoever. (b) If, during the applicable warranty period, (i) R-Jet Tek is notified promptly in writing upon discovery of any defect in the products, including a detailed description of such defect; (ii) such products are returned to R-Jet Tek’s (DDP: Delivered Duty Paid) facility accompanied by R-Jet Tek's Returned Material Authorization form; and (iii) R-Jet Tek’s examination of such products discloses to R-Jet Tek's satisfaction that such products are defective and such defects are not caused by accident, abuse, misuse, neglect, alteration, improper installation, repair, improper testing, or use contrary to any instructions issued by R-Jet Tek, R-Jet Tek shall, at its sole option, either repair, replace, or credit Buyer the purchase price of such products. No products may be returned to R-Jet Tek without R-Jet Tek's Returned Material Authorization form. Prior to any return of products by Buyer pursuant to this Section 5, Buyer shall afford R-Jet Tek, or its authorized representative, the opportunity to inspect such products at Buyer's location. (c) The performance of this warranty does not extend the warranty period for any products beyond that period applicable to the products originally delivered. (d) THE FOREGOING WARRANTY CONSTITUTES R-Jet Tek's EXCLUSIVE LIABILITY, AND THE EXCLUSIVE REMEDY OF BUYER, AND FOR ANY BREACH OF ANY WARRANTY OR OTHER NONCONFORMITY OF THE PRODUCTS COVERED BY THESE TERMS AND CONDITIONS. THIS WARRANTY IS EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES. R-Jet Tek MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY SHALL BE AS EXPRESSLY PROVIDED IN THIS SECTION 5. (e) IN NO EVENT WILL R-Jet Tek BE LIABLE FOR ANY COSTS ASSOCIATED WITH THE REPLACEMENT OR REPAIR OF PRODUCT, INCLUDING LABOR, INSTALLATION, OR OTHER COSTS INCURRED BY BUYER AND, IN PARTICULAR, ANY COSTS RELATING TO THE REMOVAL OR REPLACEMENT OF ANY PRODUCT.
(a) All products intended for return must be purchased from R-Jet Tek. Return of products will be considered based on the following conditions: (a) All product returns must be pre-authorized by R-Jet Tek with a return merchandise authorization (RMA) number. To obtain an RMA number call R-Jet Tek customer service at (800) 688-0129 or (719) 578-0506. Return shipments without an RMA number may be rejected in R-Jet Tek’s sole discretion. (b) Returns of defective products will be paid for by R-Jet Tek when R-Jet Tek authorized carriers are used. Return shipment charges via unauthorized carriers and all customs or broker’s fees are the responsibility of Buyer. R-Jet Tek reserves the right to charge-back to Buyer shipping charges incurred on those products which were returned as defective and no fault is found. Under no circumstances shall the total defective returns of any specific product exceed the total purchases for that product in the 90 calendar days prior to the return request. (c) Upon written approval by R-Jet Tek, Buyer may return current, undamaged products which are unopened and in their original packaging to R-Jet Tek for full credit, less any discounts, marketing considerations or credits previously received, and less a minimum 15% restocking fee. Under no circumstances shall R-Jet Tek authorize a return of a product that was purchased by Buyer more than 90 calendar days prior to the return request. All freight charges for non-defective and pre-approved product returns shall be the responsibility of Buyer. A non-defective and pre-approved product return that is not returned in its original packaging and in saleable condition, in R-Jet Tek’s sole discretion, shall be returned to Buyer at Buyer’s expense.
7. INTELLECTUAL PROPERTY
(a) R-Jet Tek shall, at its own expense, defend, or at it's option, settle any suit that may be instituted against Buyer for any alleged infringement of any United States patent, trademark, or copyright related to products covered by these terms and conditions (except products covered by Section 7(d) below), provided that, (i) such alleged infringement does not arise from the use of such products as a part of or in combination with any other devices or parts or from R-Jet Tek compliance with instructions issued by Buyer; (ii) Buyer gives R-Jet Tek immediate notice in writing of any such suit and permits R-Jet Tek, through counsel of R-Jet Tek's choice, to answer the charge of infringement and defend or settle such suit; and (iii) Buyer gives R-Jet Tek all needed information, assistance and authority, at R-Jet Tek's expense, to enable R-Jet Tek to defend such suit. In the case of a final award of damages in any such suit, R-Jet Tek shall pay such award, but shall not be responsible for any settlement made without its prior written consent. R-Jet Tek will not settle any such suit without the consent of Buyer unless such settlement requires no payment by Buyer or admission of liability of Buyer. (b) In satisfaction of Section 7(a), R-Jet Tek, at its sole discretion, may (i) replace or modify products with non-infringing products that are functionally equivalent; (ii) obtain a license for Buyer to continue to use or sell products; or (iii) accept the return of products and refund the amount paid by the Buyer for such returned products. (e) THIS SECTION 7 STATES R-Jet Tek’S TOTAL RESPONSIBILITY AND LIABILITY AND BUYER'S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK, OR COPYRIGHT BY ANY PRODUCTS OR SERVICES DELIVERED HEREUNDER, OR ANY PART THEREOF, THIS SECTION 7 IS IN LIEU OF AND REPLACES ANY OTHER EXPRESSED, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT. IN NO EVENT SHALL R-JET TEK BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT. R-Jet Tek is not obligated to defend or settle any suit based on alleged infringement outside of the United States of America. (d) Buyer shall, at its own expense, indemnify and hold R-Jet Tek harmless from and against any liabilities, costs, damages, or losses resulting from any alleged infringement of any patent, trademark or copyright arising as a result of R-Jet Tek's compliance with any of Buyer's designs, specifications, or instructions, and shall defend at its own expense, including attorney's fees, any suit brought against R-Jet Tek alleging any such infringement, including infringement arising out of the use of such products as part of or in combination with another device or from R-Jet Tek's compliance with instructions from Buyer provided that R-Jet Tek, (i) gives Buyer immediate notice of any such suit and permits Buyer, through counsel of its choice, to defend such suit; and (ii) gives Buyer all needed information, assistance and authority, at Buyer's expense, necessary for Buyer to defend any such suit.
Anyone of the following acts by Buyer shall constitute a material breach of Buyer's obligations hereunder: (a) Buyer fails to make payment for any products or services when due; (b) Buyer fails to accept conforming products or services supplied hereunder; or (c) filing of a voluntary or involuntary petition in bankruptcy against Buyer, the institution of any proceeding in insolvency or bankruptcy (including reorganization) against Buyer, or an assignment for the benefit of creditors of Buyer. In the event of Buyer's material breach, R-Jet Tek may (in addition to any other rights or remedies provided herein or at law or in equity), by written notice to Buyer, terminate its obligations or any part thereof, without any liability to R-Jet Tek. Buyer shall pay all costs, including reasonable attorney's fees, incurred by R-Jet Tek in any action brought by R-Jet Tek to collect payments owing or otherwise enforce its rights.
9. FORCE MAJEURE
R-Jet Tek shall not be liable hereunder due to any cause beyond its control, including but not limited to acts of God, acts of civil or military authority, fires, epidemics, floods, riots, wars, sabotage, labor disputes, yield problems, governmental actions, or inability to obtain materials, components, energy, manufacturing facilities, or transportation. In the event of any such delay, the date of delivery or performance hereunder shall be extended by a reasonable period of time and R-Jet Tek shall not be liable for any such delay.
10. LIMITATION OF LIABILITY
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, R-Jet Tek SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO BUYER OR ANY THIRD PARTIES FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES WHETHER IN AN ACTION BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF R-Jet Tek IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. (b) UNDER NO CIRCUMSTANCES SHALL R-Jet Tek’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER (INCLUDING BUT NOT LIMITED TO ANY WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO R-JET TEK HEREUNDER FOR THE PRODUCTS OR SERVICES ACTUALLY GIVING RISE TO SUCH LIABILITY (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN SUCH ACTION). THIS LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS TO BUYER FOR CLAIMS OR DAMAGES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. (c) IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THESE TERMS AND CONDITIONS WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. (d) NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, R-Jet Tek SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR EXCESS COSTS OF REPROCUREMENT.
Buyer will not use or permit to be used any trademark, service mark, or trade name owned by R-Jet Tek or any of its subsidiaries, divisions, or affiliates without prior written consent of its expressly authorized representative. Should consent be given, all use for which consent was obtained shall cease upon the terms set forth in the consent, but not later than the time that Buyer ceases selling products using R-Jet Tek products.
No party shall transfer or assign any or all of its rights or interests hereunder without the prior written consent of the other party except in connection with a sale of substantially all of its assets.
Any notice required or permitted to be given under these terms and conditions shall be sufficient if in writing, sent by e-mail with a confirmation copy via facsimile or by US first class mail or overnight delivery, in each case to the respective e-mail address and physical address listed on the face of this document or as provided by a party to the other party in writing.