Terms and Conditions for Online Orders

These Terms and Conditions for Online Orders (the “Terms”) are entered into by and between you (“you,” “your” or “Buyer”) and Rapid Materials, Inc. (“we,” “us,” “our,” or “RM”) (each, a “Party” and collectively, the “Parties”).  These Terms apply to the purchase and sale of goods, products, and/or services (collectively, the “Products”) through the website(s) of RapidMaterials.com, buys-5.com, and/or buymetalroofingtools.com (each individually and collectively, the “Site”) and apply to and are incorporated into any and all offer(s), order(s), confirmation(s), or agreement(s), including, without limitation, any order confirmation.  These Terms, together with any documents incorporated herein by reference or attachment, constitute the entire agreement between Buyer and RM for the purchase and sale of Products and supersede any and all prior discussions, proposals, negotiations, representations, and/or agreements (collectively referred to as the “Terms”).

You should review these Terms prior to purchasing any Product through this Site.  All purchases and sales of Products through this Site are expressly conditioned on your acceptance of these Terms, and your continued use of the Site constitutes your acceptance of and agreement to be bound by these Terms.

The Parties hereby agree as follows:

1. Applicability. Notwithstanding anything to the contrary in these Terms or in any other document incorporated herein by reference, any terms and/or conditions submitted by the Buyer to RM, which are contrary to, inconsistent with, different than, and/or additional to these Terms are hereby expressly rejected. Fulfillment of a purchase order or other communication from Buyer does not constitute acceptance of Buyer’s terms and conditions and does not waive, modify, supplement, or amend these Terms. Any amendment or modification to these Terms requires RM’s written consent and shall be invalid, null and void otherwise and shall not relieve Buyer of any of its obligations under these Terms.

2. Changes. These Terms are subject to change by RM without prior written notice at any time, in RM’s sole discretion. Any and all changes are effective immediately when posted by RM on the Site.

3. RM Website Terms of Use.   The following “Website Terms of Use” apply to and govern any access and use of the Site by Buyer, whether as a guest or a registered user:

(a) Access to the Site.  From time to time, RM may restrict access to some parts of the Site or to the entire Site, to some users or all users, including registered users.  RM is not liable if for any reason all or any part of the Site is unavailable at any time or for any period.

(b) Your Account.

(i) If Buyer is asked to provide registration details or other information in order to access the Site or to use some of the resources offered by or through the Site, Buyer agrees to provide correct, current, and complete information. Buyer acknowledges and agrees that all information provided to register with or to use the Site is governed by the RM Privacy Policy (as set forth herein), and Buyer consents to all actions RM takes with respect to Buyer’s information consistent with the RM Privacy Policy.

(ii) If Buyer chooses, or is provided with, a username, password, or any other information as part of RM’s security procedures, Buyer agrees to treat such information as confidential.  Buyer agrees that, by using the Site, Buyer is responsible for maintaining the confidentiality of Buyer’s account and password and for restricting access to Buyer’s computer, and Buyer agrees to accept responsibility for all activities that occur under Buyer’s account and/or password.  RM reserves the right the right to refuse service and/or to disable any username, password, or other identifier, whether chosen by Buyer or provided by RM, at any time in RM’s sole discretion, including, without limitation, if, in RM’s opinion, Buyer has violated any provision of these Terms.

(c) Intellectual Property Rights.  Buyer acknowledges and agrees that:

(i) The Site and its content and features are owned by RM, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws;

(ii) These Terms allow Buyer to use the content of the Site for personal, non-commercial use only.  In other words, while Buyer may purchase Products from the Site for use in a commercial setting (such as a commercial construction project), Buyer shall not access or use any part of the Site or any content or features (i.e., any intellectual property) available through the Site for any commercial purpose as the Site and its contents and features are not the property of Buyer.

(iii) No right, title, or interest in or to the Site or any content on the Site is transferred to Buyer through Buyer’s access and use of the Site, and all such rights are reserved by RM;

(iv) The RM name, logo, design, slogan, and any and all other intellectual property are trademarks of RM or its affiliates or licensors. Any and all intellectual property on the Site are the trademarks of their respective owners; and

(v) Any use of the Site not expressly permitted by these Terms is a breach hereunder and may violate copyright, trademark, and other laws.

(d) Prohibited Uses.  Buyer may use the Site only for lawful purposes and in accordance with these Terms. Buyer agrees not to use the Site:

(i) In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries);

(ii) To transmit, or procure the sending of, any advertising or promotional material, including, without limitation, any “junk mail,” “spam,” or any other similar solicitation;

(iii) To impersonate or attempt to impersonate RM, an RM employee, another user, or any other person or entity;

(iv) To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by RM in its sole discretion, may harm RM or users of the Site, or expose them to liability; or

(v) To attempt to interfere with the proper working of the Website.

(e) Electronic Communications. Buyer acknowledges and agrees that by visiting the Site or sending e-mails or other electronic communications to RM (or any of its affiliates, parent entities, subsidiaries, employees, agents, members, or officers), Buyer is communicating with RM electronically and that any and all electronic communications are subject to the RM Privacy Policy.  Buyer hereby consents to receive electronic communications from RM. RM will communicate with Buyer by e-mail or by posting notices on the Site.  Buyer agrees that all agreements, notices, disclosures, and other communications that RM provides to Buyer electronically satisfy any legal requirement that such communications be in writing.

4. Pricing.

(a) All prices (including, without limitation, discounts, and promotions posted on the Site) are subject to change without notice and in RM’s sole discretion.  RM cannot confirm the price of a Product until Buyer’s order is confirmed by RM. Notwithstanding the foregoing or anything to the contrary herein or in any communications between Buyer and RM, a price, even after confirmation by RM, is subject to change due to a Force Majeure Event, as set forth herein. Buyer’s “Bidding” or “Quoting” of Products to be purchased from the Site for a construction project or for any other purpose is to be done at Buyer’s sole risk.

(b)When placing an order through the Site, Products placed in the Shopping Cart will always reflect the most recent price displayed on the item’s product detail page.  However, this price may differ from the price shown for the Product when it is first placed in the Shopping Cart.  Placing an item in the Shopping Cart does not reserve the price shown at that time.  The price of a Product may increase (or decrease) between the time the item is placed in the Shopping Cart and the time the order is completed and the Product purchased.  Posted prices do not include taxes, duties, fees, or charges for shipping and handling. All such taxes, duties, fees, and charges will be added to the merchandise total and will be itemized in the Shopping Cart and in the order confirmation email.

5. RM Privacy Policy.

(a) RM is committed to protecting and respecting your privacy.  Your access to and use of the Site is subject to this RM Privacy Policy as well as all applicable laws.  This RM Privacy Policy describes the types of information we may collect from you or that you may provide when you visit the Site and RM’s practices for collecting, using, and disclosing that information.  This Privacy Policy applies to information we collect from you on this Site or through electronic communications, such as email, text, and other electronic communications between you and RM.  This Privacy Policy does not apply to information collected by RM by any other means or collected by any third party.  Please read this RM Privacy Policy carefully.  By accessing and/or using the Site, you accept and agree to be bound by the terms and conditions of this RM Privacy Policy without limitation or qualification and agree and accept any changes to the RM Privacy Policy which such changes and updates may occur from time to time.

(b) Information we may collect.

(i) We may collect personal identification information, such as your name, your mailing address, telephone number, e-mail address, credit card or other financial/payment information, and any other information that may be requested in a communication from RM to Buyer.

(ii) It is possible we may also use automatic data collection technologies to collect certain information about your internet connection, the equipment used to access the Site, and/or your internet usage, for example, your IP address, operating system, and/or browser type.  We do not collect personal identification information automatically.

(iii) We may collect the information directly from you when you provide it to RM through access and/or use of our Site, such as submitting an order through the Site, responding to a survey, or submitting or responding to electronic communications by and between you and RM (for example, records of email correspondence between you and RM).  It is possible that we may also collect the information automatically, such as through the use of cookies and other tracking technologies, as you use the Site and/or complete transactions on the Site.

(c) Information that may be collected by third parties.

(i) It is possible that some content and/or applications or features on the Site are served by third parties.  We do not control and are not responsible for the use of tracking technologies by third parties to collect information about you when you use the Site, nor do we control how these third parties may use your information.

(d) Use and disclosure of your information by RM.

(i) Use.  We may use information that you provide to us or that we collect from you to:  fulfill any orders and to provide you with the Products you order from the Site; provide you with information you request or to respond to inquiries you submit to RM; notify you of changes to the Site or Products we offer through the Site; contact you about Products that may be of interest to you and/or for other promotional purpose (provided we will provide you with the ability to opt out of promotional communications); fulfill our contractual obligations and/or enforce our contractual rights arising under contracts between you and RM, including, without limitation, for billing and collection purposes; fulfill any other purpose for which you provide the information to RM; and/or for any other purpose for which you have provided your consent.

(ii) Disclosure.  You acknowledge and agree that RM may disclose aggregated information it collects about the users of the Site without restriction (provided it does not include personal identification information).  In addition, RM may disclose personal information that RM collects or that you provide to RM as follows:  to RM’s parent entities, subsidiaries, affiliates, and/or successor in interest; to service providers and other third parties with whom we contract to support our business (provided such third parties are bound to use the personal information only for the purposes for which we disclose it to them); to comply with applicable law, a court order, or legal process; and/or if RM believes, in its sole discretion, that disclosure of such information is necessary or appropriate in order to protect the safety, rights, and/or property RM, RM’s customers, or others (for example, RM may exchange information with other companies, agencies, and/or government organizations to assist in fraud protection).

(iii) It is your sole responsibility to exercise any opt-out rights that may be available to you or other mechanisms that may allow you to control the collection of your information.  For example, should you choose to control your information in this way, it is your sole responsibility to opt out of receiving promotional emails and it is also your responsibility (at your own risk) to set your browser to refuse all or some browser cookies or to alert you of cookies.  You acknowledge and agree that it is possible that some or all of the Site may not function properly if cookies are disabled, and you assume such risk should you choose to disable or refuse cookies.

(e) Securing your information.  RM takes security of your personal information seriously and has implemented certain commercially reasonable measures to secure your personal information from unauthorized access, use, or disclosure.  Notwithstanding the foregoing, you acknowledge and agree that the transmission of information via the internet (such as via the Site) and/or through any form of electronic communication is not completely secure and that RM does not and cannot guarantee the security of your personal information transmitted through the Site or through any electronic communication.  You further acknowledge and agree that any and all transmission of personal information is at your own risk and RM shall not be responsible for unauthorized access, use, or disclosure of your personal information in circumvention of any security measures that may implemented by RM.

6. Orders.

(a) Placing an Order.

(i) It is Buyer’s sole responsibility to determine the adequacy of the application of the Products and to refer to the technical information for each Product. Buyer acknowledges and agrees that RM assumes no responsibility or liability for the use and/or application of any Product purchased from RM and/or through the Site.

(ii) RM does not offer any color matching warranty or guaranty and Buyer acknowledges and agrees that the color(s) / finish(es) are not guaranteed to match if multiple orders are placed.

(b) Order Acceptance and Cancelation by RM.

(i) Buyer agrees that its order is an offer to buy, under these Terms, all Products listed in the order. All orders must be accepted by RM and RM is not obligated to sell the Products to Buyer.  RM may choose not to accept an order, in RM’s sole discretion, even after RM sends Buyer a confirmation email.

(ii) If RM determines that Buyer’s order cannot be shipped exactly as placed, RM will notify Buyer and work with Buyer to find a suitable alternative. If RM cannot, for any reason fulfill Buyer’s order, then RM will issue a refund Buyer.

(c) Payment.        Payment must be received by RM as a condition precedent to RM’s acceptance of an order.  Payment may be made by credit card or PayPal only.    Buyer hereby represents and warrants that:  (i) the credit card or PayPal information supplied to RM in connection with the order is true, correct, and complete; (ii) Buyer is duly authorized to use such credit card or PayPal account for the purchase; (iii) charges incurred by Buyer will be honored by Buyer’s credit card company or by PayPal; (iv) Buyer will pay charges incurred by Buyer at the posted prices, including shipping and handling charges and all applicable taxes, fees, and charges, if any, regardless of the amount quoted on the Site at the time of the order; and (v) Buyer agrees not to dispute any charges with Buyer’s credit card company without prior written authorization from RM and that any dispute by Buyer without such prior written authorization will constitute a breach of these Terms.

7. Sales Taxes.

(a) RM collects sales taxes as required by the laws of all 50 U.S. states. In the event the sales taxes, fees, and/or charges included in the total purchase price at the time of Buyer’s order are less than or more than the actual amount of sales taxes, fees, and/or charges applicable to such Product(s) because (i) RM underestimated or overestimated the taxes, fees, and/or charges and/or (ii) because the applicable law, code, rule, ordinance, or regulation relating to such taxes, fees, and or charges is enacted, amended, repealed, and/or otherwise modified after the order is placed, then RM reserves the right to separately invoice Buyer for all such applicable taxes, fees, and/or charges and Buyer agrees that these amounts shall be immediately due and payable.  In the event the amount is lower than the amount invoiced at the time of the order, then RM will issue a refund to the Buyer.

(b) If Buyer is sales tax exempt, it is Buyer’s responsibility to contact RM prior to placing an order.  For International Orders (to the extent such are expressly allowed under these Terms), RM does not collect or pay sales taxes, brokerage fees, levies or any other fee or charge that may be required to import materials into Buyer’s country.  Any and all such fees and/or charges are the sole responsibility of the Buyer.

8. Shipping Policy.

(a) Notwithstanding anything to contrary herein or in any communications between Buyer and RM, Buyer acknowledges and agrees that all delivery times set forth in the order confirmation or tracking information are estimates only and are non-binding. Under normal circumstances, most orders are ready for pickup by the Carrier within 1-2 business days of receipt and payment of an order and ship out within 2-3 business days after order receipt and payment.  Longer lead times are required for shipments that require transport by Freight Carrier and/or for other circumstances beyond our control, including, without limitation, a Force Majeure Event (as defined herein). 

(b) As used herein, “Carrier” refers to United States Postal Service, United Parcel Service (UPS), FedEx and/or other parcel shipping carrier as selected by RM in RM’s sole discretion.  “Freight Carrier” refers to carriers used by RM for LTL freight and other freight shipping, including, without limitation, YRC Freight.

(c) Shipping Days.

(i) RM ships Products Monday through Friday except for the following observed holidays:

New Year’s Day

Good Friday

Memorial Day

Independence Day

Labor Day

Thanksgiving Day

Day after Thanksgiving Day

Christmas Eve

Christmas Day

The Monday after a Sunday holiday.

the Friday before a holiday falling on a Saturday.

(ii) Expedited Shipping orders placed before 1:00 PM Eastern Time on the day before a holiday will be processed and shipped on the same day.  Expedited Shipping orders placed after 1:00 PM Eastern Time will be processed and shipped on the following business day and in accordance with Section 8(f) hereto.  Saturdays and Sundays are not counted as business days.

(iii) Buyer acknowledges that certain Products ship from a different warehouse and, in such event, extended holiday schedules may apply.  By way of example only, and without limitation, such Products may include:

(A) All Freund Tools

(B) All Rau Products

(C) All Express Products

(D) All Erdi Products

(E) All AMG Products

(d) RM reserves the right to change the shipping method at its own discretion and expense.

(e) In some cases, some Products may ship directly from their respective manufacturers or from fulfillment locations that may require that multiple packages be shipped to fill your order.  If this occurs, RM will provide tracking information for all packages.

(f) Expedited Shipping.

(i) To the extent expressly available on the Site, RM offers expedited shipping (Next Day Air, 2-Day, 3-Day, etc.) (“Expedited Shipping”).  However, RM generally requires up to two (2) business days to process an order (inclusive of expedited orders).  Accordingly, an Expedited Shipping Order may not ship the day it is placed by Buyer.  Expedited Shipping orders placed after 1:00PM Eastern Time cutoff will not ship until the next business day.  Saturdays and Sundays are not counted as business days.  Any Expedited Shipping order placed over the weekend will not ship until Monday (or the next business day, if applicable).

(ii) If an order is time critical, it is Buyer’s sole responsibility to contact RM prior to placing the order.  In many cases, but not all, RM may be able to accommodate Buyer’s delivery schedule. Buyer acknowledges and agrees that RM makes no warranty or guarantee regarding the actual delivery date and/or delivery time.  RM has no control over the order once it leaves RM’s warehouse.

(iii) Notwithstanding the foregoing or anything to the contrary herein or in any communications between Buyer and RM, expedited shipping delivery times are not guaranteed by RM.  Guarantees of delivery time(s) (if any) are solely by the respective Carriers (e.g., United States Postal Service, United Parcel Service (UPS), FedEx, etc.), and any claim as to untimeliness of delivery must be made solely and directly with the Carrier.  Buyer acknowledges that 2-Day, 3-Day, and ground shipments have no delivery guarantee.

(g) Freight Shipments.

(i) Unless otherwise expressly noted in writing by RM to Buyer and the cost thereof expressly included in the order, freight shipments do not include unloading services or liftgate services.  Neither RM nor the Freight Carrier offer “piggy-back” forklift delivery, and liftgate delivery is generally limited by the size and weight of the materials being shipped.  In all cases, it is the Buyer’s sole responsibility to provide a means to unload at time of delivery and at Buyer’s sole cost.

9. Transfer of Title and Risk of Loss. Title and risk of loss for the Products shall pass to Buyer upon shipment.  Each delivery constitutes a separate sale. All delivery times set forth in the order confirmation or tracking information are estimates only and are non-binding. In no event may Buyer reject Products nor shall Buyer be entitled to a reduction in price because the Products are delivered outside of such estimated delivery times. Buyer assumes all risk and liability for, and hereby agrees, to indemnify and hold RM harmless from and against, all losses, liabilities, damages, and claims whatsoever (whether for personal injury, property damage, or otherwise), arising out of the transportation, unloading, storage, handling, or use of any Products after title passes to Buyer.

10. Inspection of Delivery.

(a) Any and all Products received in a parcel shipment must be inspected by Buyer within one (1) business day of receipt for missing, incorrect, or damaged items.  IMPORTANT: It is the sole responsibility of the Buyer to inspect the contents of the shipment within one (1) business day of receipt of the delivery for missing, damaged, or incorrect items. If any item is found to be missing, damaged, or incorrect, Buyer must notify RM by email within one (1) business day of receipt of the order. If Buyer claims the Products were damaged at the time of delivery, Buyer must provide digital photographs of any such damaged Products at the time of written notice. If Buyer fails to provide RM with such written notice within the one (1) business-day time frame, then all Products shall be deemed accepted by Buyer “AS IS” and in no event may Buyer seek a refund or other reimbursement for the Products.

(b) Crate and Pallet shipments must be inspected for damages to contents at time of delivery with delivery driver present. If there is any damage to the Products, Buyer must contact the RM office at 770-405-1060 before the driver leaves. All damage must be photographed (via digital photographs), noted on the delivery slip and signed off by the driver. RM is not responsible for any damages not properly documented at time of delivery.

11. Order Cancelation Policy; Refusal of Delivery.

(a) Order Cancelation.

(i) You are solely responsible for placing an accurate order.  If you have made an error or wish to cancel your order, notify us as soon as possible.  Without the written agreement of RM (even if there is a mistake in the order due to an error of RM), payment for an order cannot be canceled or reimbursed once an order confirmation has been sent.

(ii) Once an order is processed and shipped, the order is non-cancelable.  However, Buyer may elect to have the order processed as a return per RM’s Return Policy, as set forth herein. ACM/MCM, Trespa and Equitone orders are not cancelable once RM has issued a purchase order to the respective vendors.

(b) Refusal of Delivery. Refusal of delivery does not constitute cancelation of the order.  If the Product(s) ordered and shipped to Buyer is a non-cancelable or non-refundable Product(s), Buyer will not receive any refund, and will be liable for the cost of return shipping or reshipping.  Any other refusal of delivery will be treated as an unauthorized return and will be subject to a minimum of a 25% restocking fee, plus the cost of initial shipping, the cost of return shipping, and the cost of any missing or damaged materials.

12. Returns and Refund Policy.

(a) If there is a mistake in the order solely due to an error of RM, and if Buyer advises RM of such mistake within fifteen (15) days of shipment (or within one (1) business day of receipt in the case of parcel shipments and/or crate and pallet shipments), then the order will be corrected at no additional cost to Buyer.  For any other return, cancelation, or return of delivery, RM will charge a 25% restocking fee.

(b) Damaged Products.

(i) Buyer must inspect any and all Products in accordance with Section 10 hereto.

(ii) Any and all damages must be reported prior to the use of the Product. RM will not accept returns for any Product that has been used, modified or removed from its original packaging.

(iii) Filing a Claim.  If applicable, RM will assist Buyer in making a claim with the Carrier or Freight Carrier within reasonable means.  In order for RM to file a claim with the Carrier or Freight Carrier on Buyer’s behalf, Buyer agrees to the following requirements and/or conditions:

(A) Buyer will notify RM immediately.  Buyer may call RM at 770-405-1060, or email info@rapidmaterials.com.  RM may request that Buyer also send RM a notification in writing, as well as supply any photos so that RM can pursue a claim.

(B) Once RM has been properly notified, RM will either reship the materials at no expense to Buyer or issue a refund (at Buyer’s request).

(C) If materials arrive damaged or the shipment is missing due to an act or error on the part of the Carrier or Freight Carrier, RM will generally (in RM’s sole discretion) only reship the materials using the same method as the original ordered.

(D) Buyer will NOT file a claim with the Carrier or Freight Carrier without RM’s written consent.  If Buyer files a claim on its own behalf and without RM’s written consent, then RM will not ship replacement materials or refund any portion of the order.  Buyer will then have to place and pay for a new order.

(c) Returns. Returns for any reason other than RM error will be accepted only under the following conditions:

(i) returns must be pre-approved, in writing, by RM.

(ii) Return items must be in un-opened, un-damaged original packaging. Returns of any used item will not be accepted and no refund will be given. If a used item is returned to RM, RM will notify Buyer in writing.  Buyer may elect to have the item shipped back to Buyer at Buyer’s expense.

(iii) Return items must be shipped at Buyer’s expense within thirty (30) days of date of original order. Tracking information must be provided to RM at time of shipment. All return instructions must be followed. RM is not responsible for lost return shipments under any circumstances. Orders returned with “collect” shipping will not be accepted under any circumstances.

(iv) A restocking fee of 25% will be charged against any refund due.

(v) Shipping costs will not be refunded under any circumstances.

(d) Refunds.

(i) Refunds may take up to thirty (30) days after RM processes the return and issues a refund.

(ii) Any refunds will be made using the same credit card used for the original purchase.  No other form of refund will be given.

(iii) For any refunds issued by RM for payments made using a credit card, the terms and conditions of Buyer’s credit card company will be in force.

(iv) For any refunds issued by RM for payments made by PayPal, PayPal does not refund the Merchant Transaction Fee when a Merchant (like RM) refunds a PayPal transaction.  For payments made using PayPal, if Buyer cancels the order for any reason after the transaction has processed (except for RM’s inability to fulfill Buyer’s order), then RM will refund Buyer’s PayPal account, less the 2.9% Transaction Fee (and any other Merchant Transaction Fees assessed by PayPal).  In other words, for a $100 order, Buyer would be refunded $97.10 ($100.00-2.9%).  If the order transaction originated outside of the United States, the Merchant Transaction Fee is typically 3.9%.

(e) Notwithstanding the foregoing or anything to the contrary in the Terms, the following items CANNOT be returned, and all sales of these products are final:

(i)exterior cladding materials (including, without limitation, Reynobond, Larson, Alucobond, Trespa and/or Equitone products); and

(ii) used safety equipment.

13. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the Terms shall be construed as creating any agency, partnership, joint venue or form of other joint enterprise, employment, or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other Party in any matter whatsoever.

14. No Third-Party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assignees, and nothing herein, express, or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever or by reason of these Terms.  Buyer acknowledges and agrees that (i) no third party is a party to these Terms, and (ii) no third party, including, without limitation, any parent company, affiliate, or subsidiary of RM has any obligations or duties to you under these Terms.

15. Manufacturer Warranty.

(a) RM does not provide any warranties or guaranties with respect to the Products offered on the Site.  However, the Products offered on the Site may be covered by the manufacturer’s warranty as may be detailed in the Product’s description on the Site and/or included with the Product and any such manufacturer’s warranty is subject to the terms, conditions, and limitations of the original manufacturer’s standard warranty.  To obtain warranty service for any defective Products, Buyer must follow the instructions included in the manufacturer’s warranty. Any and all warranty claims shall be filed with the original Product manufacturer per the terms and conditions applicable to such manufacturer warranty.

(b) ALL PRODUCTS AND SERVICES OFFERED ON THE SITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

(c) RM HERBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED BY LAW, WHETHER ARISING BY OPERATION OF LAW, COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. BUYER HEREBY AFFIRMS THAT RM SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER’S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO BUYER.

16. Disclaimer of Damages and Limitation of Liability.   To the fullest extent permitted by law, RM hereby disclaims and shall not be liable to Buyer or to any third-party for any special, consequential, incidental, indirect, special, exemplary, lost profit, lost revenue, loss of use, production downtime, diminution in value, or punitive damages, arising out of, resulting from, relating to, and/or in connection with thE TERMS, THE TRANSACTION, AND/or RM’s performance under thESE TERMS, regardless of the legal or equitable theory upon which claims are based, including without limitation, claims based on contract, tort, warranty, negligence, strict liability, or otherwise, even if RM has been informed of the possibility of such damages. RM’s sole and maximum liability, for any reason, and Buyer’s sole and exclusive remedy for any cause whatsoever arising under the TERMS, THE TRANSACTION, AND/or RM’s performance under thESE TERMS shall not exceed the price of the PRODUCTS for which any claim is made.

17. Severability and Assignment.      If any provision of these Terms is deemed by a court of competent jurisdiction to be invalid or unenforceable, then such provision will be severed from these Terms, as applicable, and have no further impact of the remaining provisions. Buyer may not assign its rights or delegate any of its obligations under these Terms without the prior written consent of RM, and any such assignment or delegation shall be null and void. Notwithstanding anything to the contrary in these Terms, RM has the right to transfer and/or assign any of its rights and/or obligations under these Terms, in whole or in part, to any parent entity, subsidiary, affiliate, or any entity succeeding in the interests of RM.

18. Force Majeure. RM shall be excused from performance of its obligations under these Terms and will not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in RM’s performance under these Terms to the extent such failure or delay is caused by or results from acts or circumstances beyond RM’s reasonable control, including, but not limited to, acts of God, fire, flood, natural disaster, weather conditions, a change in applicable law, difficulty sourcing raw materials, war, equipment breakdowns, strike, lockout, labor dispute, epidemic and/or pandemic, supply chain disruptions, market changes, labor restraints or delays affecting Carriers or Freight Carriers, large order volumes, unavailability or shortages of manpower, materials, or equipment, telecommunication breakdown or power outage, and/or interruption in utilities or transportation (each a “Force Majeure Event”).  Additionally, Buyer acknowledges and agrees that the price of Products purchased through the Site may increase as a result of a Force Majeure Event and that, in such event, the price set forth in any confirmation by RM (via email or otherwise) is non-binding and is subject to increase by RM.  RM will notify Buyer of any such price increase.

19. Compliance with Laws.  Buyer shall handle, store, process, use, and transfer the Products in compliance with all applicable: (i) safety information provided by RM and/or the Product manufacturer; and (ii) any applicable laws, codes, rules, ordinances, and regulations, including, without limitation, those regarding environmental health and safety. Buyer hereby represents to RM that Buyer possesses all requisite skill and expertise necessary to handle, store, process, use, and transfer the Products.  Buyer hereby releases and agrees to indemnify, defend and hold RM, including its shareholders, directors, officers, employees, affiliates, successors, and permitted assignees, harmless from and against all losses, liabilities, damages, and claims whatsoever (whether for personal injury, property damage, or otherwise), arising out of or resulting from Buyer’s handling, storing, processing, using, and/or transferring of the Products after title passes to Buyer.

20. Governing Law, Dispute Resolution, and Venue. These Terms are governed by the laws of the State of Georgia without regard to its conflict of law principles.  Any claim, dispute, or controversy arising out of or relating to these Terms must be brought exclusively in a court of competent jurisdiction located in Cobb County, Georgia. THE PARTIES WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION IN ANY ACTION, PROCEEDING, OR HEARING ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE ORDER, THE TERMS, OR THE TRANSACTIONS CONTEMPLATED HEREBY. Buyer hereby waives any and all defenses that it may have regarding the jurisdiction or venue. The parties acknowledge and agree that the U.N. Convention on Contracts for the International Sale of Goods (CISG) does not apply to these Terms. In the event the parties are involved in a dispute resolution proceeding and if RM is the prevailing party, then RM shall be entitled to recover from the Buyer its reasonable attorney’s fees and other reasonably incurred expenses in RM’s successful prosecution or defense of such proceedings.

21. Government Approvals. Each Party is responsible for compliance with and obtaining such approvals and/or permits as may be required under federal, state, and local laws, ordinances, regulations, and rules as may be applicable to the performance of their respective responsibilities and obligations under these Terms.

22. No Waiver. No waiver by RM of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by an authorized representative of RM. No failure to exercise or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof by RM.  No single or partial excuse by RM of any right, remedy, power, or privilege hereunder precludes the exercise by RM of any other right, remedy, power, or privilege.

23. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the Site and on the order confirmation or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, recognized overnight courier (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in herein, a Notice is effective only (a) upon receipt of the receiving Party and (b) if the Party giving the Notice has complied with the requirements of this Section.

24. Survival. Provisions of these Terms, which, by their nature, should apply beyond the expiration or termination of the transaction contemplated hereunder, will remain in force including, but not limited to, the following provisions: Compliance with Laws, Governing Law, Dispute Resolution, and Venue, Notices, Disclaimer of Damages and Liability, and Survival.

25. Export Compliance.  Buyer represents and warrants that all purchases are intended for final delivery to locations within the United States. The Parties acknowledge and agree that the Products, including any software, documentation, and/or technical data related thereto (collectively, “Controlled Goods”), may be subject to U.S. or Canadian, or other foreign country’s export laws, rules, and/or regulations (“Export Laws”). Buyer shall not export, re-export, or release any Controlled Goods, directly or indirectly, to any jurisdiction to which, or to any person to whom, such export, re-export, or release is prohibited by any applicable Export Laws.  Buyer shall indemnify, defend and hold RM, including its shareholders, directors, officers, employees, affiliates, successors, and permitted assign, harmless from and against any breach of this section by Buyer or by any of its shareholders, directors, officers, employees, affiliates, successors, permitted assigns, customers, agents, distributors, resellers, and vendors.  It is the Buyer’s responsibility to obtain any export license or other approvals, and Buyer will complete any documents requested by RM prior to exporting, re-exporting, or releasing any Controlled Goods.

26. Entire Agreement. These Terms shall be deemed the final and integrated agreement between Buyer and RM on the subject matters contained in the Order and these Terms.

 

END OF TERMS AND CONDITIONS FOR ONLINE ORDERS.

 

 

 

 

 

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