RESA TERMS & CONDITIONS OF SALE
1. ENTIRE AGREEMENT
This Agreement is made by and between RESA Power, LLC (“Seller”) and Buyer for the sale and purchase of goods. This Agreement is comprised of this document, Buyer’s Application for Credit, Seller’s Order Acknowledgments and Invoices for the goods, and, if Buyer has ordered the goods through Seller’s web site, the provisions of that web site to the extent not inconsistent with the provisions of the remainder of this Agreement. This Agreement constitutes the complete and exclusive statement of the understanding and agreement of the parties with respect to the sale and purchase of the goods. No representation, condition, usage of trade, course of dealing or course of performance explain or supplement its terms or conditions
2. MODIFICATION, AMENDMENT AND WAIVER
Except as otherwise noted, this Agreement may NOT be altered, supplemented, or amended by the use of any other document, including, but not limited to, any acknowledgment, acceptance, contract, or shipping instruction form containing terms or conditions at variance with or in addition to those set forth in this document. Any attempt to alter, supplement or amend this document or to enter an order for goods that are subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written instrument signed by both Buyer and Seller. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any breach or default or of any right or remedy unless such waiver is expressed in a writing signed by the party to be bound.
Delivery dates, if any are specified in Seller’s Order Acknowledgments or Invoices, are approximate and are based upon prompt receipt of all necessary information concerning packaging, routing and shipping. Each delivery under this Agreement shall be treated, for the purposes of payment only, as a separate contract.
4. TITLE AND RISK OF LOSS
If the goods sold pursuant to this Agreement are delivered to Buyer at Seller’s premises, title to and risk of loss of the goods shall pass to upon Buyer’s receipt of the goods. Otherwise, title to and risk of loss of the goods shall pass to Buyer upon delivery of the goods to the location specified on the face of this Agreement.
5. TAXES AND FREIGHT CHARGES
Buyer shall reimburse Seller for (a) all taxes and other charges (except franchise or income taxes) that Seller may be required to pay to any governmental entity upon the production, sale, transportation, or delivery of the goods and (b) all freight charges. Seller may add all such taxes, duties and other charges, if any, to its invoices.
Payments shall be made to Seller at the address shown on Seller’s invoice for the goods. Unless otherwise indicated on Seller’s Order Acknowledge or Invoice for the goods, all payments shall be due in full, without any setoff or withholding for any reason, immediately upon Seller’s delivery of the goods sold pursuant to this Agreement.
7. BUYER’S CREDIT
If Buyer fails to pay for any one delivery when it becomes due, Seller, in Seller’s sole discretion, may terminate this Agreement or suspend further deliveries under it. Further, should Buyer’s financial condition become unsatisfactory to Seller, Seller, in Seller’s sole discretion, may require cash payment or security satisfactory to Seller for future deliveries. Any action taken pursuant to this paragraph shall be without prejudice to any other rights and remedies Seller may have.
8. INTEREST ON LATE PAYMENTS
Interest shall accrue on all sums due or found to be due under this Agreement at the lower of the rate of 18% per annum or the maximum rate then permitted by applicable law, until such sums are paid.
9. EXCUSE OF PERFORMANCE
Seller shall not be liable to Buyer for any delay in performance or nonperformance that is caused in whole or part by an event or circumstance beyond Seller’s reasonable control, including, but not limited to, fire, flood, accident, labor trouble, strike, lockout or injunction, compliance with governmental requests, laws, regulations, orders or actions, riot, sabotage, or war. The quantity of goods so effected may be eliminated from this Agreement, but this Agreement otherwise shall not be effected.
10. LIMITED WARRANTY
Seller warrants to the original purchaser that any part of the commodity purchased excluding documentation and similar items will be free of defects in workmanship and materials for the period of your warranty from the date of delivery. During the warranty period, Seller will, at its option: (1) provide replacement parts necessary to repair the product; (2) replace the product with a comparable product; or (3) refund the amount you paid for the product upon its return. Replacement parts or products will be new or serviceably used, comparable in function and performance to the original part or product, and warranted for the longer of thirty days for the US or the remainder of the warranty period. Any additional purchases or upgrades will not extend this warranty.
This product warranty covers normal use only. This product warranty does not cover damage caused during shipment and any damage caused by: actions that are beyond Seller’s control, including without limitation, impacts, fluids, fire, flood, wind, earthquake, lightning or similar disaster, war, lockout, epidemic, destruction of production facilities, riot, insurrection, or material unavailability; unauthorized modifications, attachments or peripherals; improper use, environment, installation or electrical supply; improper maintenance; any other misuse, abuse or mishandling.
EXCEPT FOR THE WARRANTIES EXPRESSED IN THIS AGREEMENT, SELLER DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE APPLICABLE LAW. THE TERM OF ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED ARE LIMITED TO THE TERM OF THIS AGREEMENT. SELLER’S AND YOUR MAXIMUM LIABILITY TO THE OTHER IS LIMITED TO THE PURCHASE PRICE YOU PAID FOR PRODUCTS OR SERVICES PLUS INTEREST AS ALLOWED UNDER THE APPLICABLE LAW. NEITHER YOU NOR SELLER WILL BE LIABLE TO THE OTHER FOR PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF USE, INTERRUPTION OF BUSINESS, “DOWN TIME”, PURCHASER’S TIME, LOSS OF USE OF RELATED EQUIPMENT, LOST PROFITS, LOST DATA OR OTHER CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), ABSOLUTE OR STRICT LIABILITY OR OTHERWISE, OTHER THAN THOSE DAMAGES THAT ARE INCAPABLE OF LIMITATION, EXCLUSION OR RESTRICTION UNDER THE APPLICABLE LAW. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
11. INSPECTION AND CLAIMS
Within 10 days after receipt of each delivery of the goods, Buyer shall examine the goods for any damage, defect or shortage. All claims for any cause whatsoever (whether based in contract, negligence, strict liability, other tort or otherwise) shall be deemed waived unless made in writing and received by Seller within 30 days after Buyer’s receipt of the goods with respect to which the claim is made, or, if the claim is for non-delivery of goods, within 45 days after the date upon which the goods were to be delivered. Buyer’s failure give written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Buyer of such claim.
12. LIMITATION OF LIABILITY
Buyer’s exclusive remedy with respect to any claim concerning this Agreement or any goods sold pursuant to this Agreement shall be for damages. Seller’s liability with respect to any claim concerning the goods shall not exceed the purchase price of the particular goods with respect to which the claim is made, or, at Seller’s option, the repair or replacement of those goods. These amounts are agreed upon as liquidated damages and not as penalties. It is intended and expressly agreed that the purpose of the preceding provisions is to set upper limits to the amount recoverable by Buyer. These liability limitations shall apply whether the claim is based in contract, negligence, strict liability, other tort, or any other cause. In no event shall Seller be liable for indirect, special, incidental, consequential or punitive damages, even if it has been advised of the possibility of such damages. Further, Seller shall not be required to pay transportation charges for the return of any goods unless Seller authorizes such return in advance. If Buyer desires that Seller assume a greater liability than what is provided for in this paragraph, Seller will amend this Agreement by attaching an addendum setting forth the additional liability and an additional amount to be paid by Buyer for Seller’s assumption of that additional liability. No such amendment shall be effective unless signed by Buyer and Seller. Seller is not an insurer, and nothing in such addendum shall be construed to hold Seller as an insurer. No suit shall be brought against Seller more than one (1) year from the date the cause of action accrues.
13. PRODUCT DESCRIPTIONS
Seller attempts to be as accurate as possible. However, Seller does not warrant that product descriptions or other content of this site is accurate, complete, reliable, current, or error-free. If a product offered by Seller itself is not as described, your sole remedy is to return it in unused condition.
Except where noted otherwise, the List Price displayed for products on our website represents the full retail price listed on the product itself, suggested by the manufacturer or supplier, or estimated in accordance with standard industry practice; or the estimated retail value for a comparably featured item offered elsewhere. The List Price is a comparative price estimate and may or may not represent the prevailing price in every area on any particular day. For certain items that are offered as a set, the List Price may represent “open-stock” prices, which means the aggregate of the manufacturer’s estimated or suggested retail price for each of the items included in the set. Where an item is offered for sale by one of our merchants, the List Price may be provided by the merchant.
With respect to items sold by Seller, we cannot confirm the price of an item until you order; however, we do NOT charge your credit card until after your order has entered the shipping process. Despite our best efforts, a small number of the items in our catalog may be mis-priced. If an item’s correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation.
15. THIRD PARTY CLAIMS
Buyer shall indemnify, hold harmless and defend Seller for, from and against any and all damages, expenses, costs and attorney fees arising from any demand, claim, allegation or lawsuit made or filed by or on behalf of any third party concerning the goods (whether based in contract, negligence, strict liability, other tort or any other cause), including, but not limited to, any demand, claim, allegation or lawsuit concerning the failure of the goods in any respect.
Buyer shall not assign (by operation of law or otherwise) its rights or delegate its performance under this Agreement to anyone without Seller’s prior written consent. Any attempted assignment or delegation without such consent shall be void.
17. ATTORNEYS FEES AND COSTS
Buyer shall pay to Seller all reasonable attorneys’ fees, costs and expenses incurred by Seller in collecting any amounts due with respect to the goods sold under this Agreement or in otherwise enforcing Seller’s rights under this Agreement, whether or not by prosecution of a claim against Buyer in an action at law.
18. CHOICE OF LAW AND FORUM
THIS AGREEMENT, AND THE APPLICATION AND INTERPRETATION OF THE TERMS OF THIS AGREEMENT, SHALL BE GOVERNED EXCLUSIVELY BY THE TERMS OF THIS AGREEMENT AND BY THE LAWS OF THE STATE OF CALIFORNIA AND APPLICABLE FEDERAL LAW OF THE UNITED STATES, EXCLUDING ANY CONFLICT-OF-LAWS PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OF THIS AGREEMENT OR THE PARTIES’ RELATIONS WITH EACH OTHER TO THE LAW OF ANOTHER JURISDICTION. BUYER AGREES AND CONSENTS TO THE JURISDICTION OF THE STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AND ACKNOWLEDGES THAT SUCH COURTS SHALL CONSTITUTE PROPER AND CONVENIENT FORUMS FOR THE RESOLUTION OF ANY ACTION AMONG BUYER AND SELLER WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND AGREES THAT SUCH COURTS SHALL BE THE SOLE AND EXCLUSIVE FORUMS FOR THE RESOLUTION OF ANY ACTIONS AMONG BUYER AND SELLER WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.