GENERAL TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale, (“Terms”), govern the sale of goods, (the “Goods”), by Rimetrix, LLC (“Seller”) to you, the consumer (“Buyer” or “you”). These Terms shall govern the transaction between Seller and Buyer (collectively, the “Parties”) notwithstanding terms or conditions posted on Seller’s webpage, advertising, and other materials. The accompanying confirmation of sale (the “Sales Confirmation”) and these Terms supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. To the extent other materials are in conflict with these Terms, these Terms shall control.
(a) The Goods will be delivered within a reasonable time after Seller’s dispatch of the Sales Confirmation. Seller shall not be liable for any delays, loss, or damage in transit.
(b) Seller shall deliver the Goods to the commercial shipment company of Seller’s choice using Seller’s standard methods for packaging and shipping such goods.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the quantity purchased under these Terms.
(d) Delivery shall be made FOB Cleveland, OH. Seller shall make delivery in accordance with the terms on the face of the Sale Confirmation.
(a) The quantity of any shipment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within 30 days of the date when the Goods would in the ordinary course of events have been received.
(b) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time.
4. Returns and Risk of Loss.
(a) Unused Goods may be returned to Seller for a refund of the purchase price within thirty (30) days of purchase. The unused Goods must be returned in original packaging.
(b) Original costs of shipping are non-refundable. Cost of shipping Goods to Seller will be paid by Buyer.
(c) Refunds will be paid to original form of payment.
(d) Packages returned to Seller’s location by a third-party shipping company that has been unable to deliver the Goods due to no access, wrong address, or other shipment issue will be automatically refunded minus the shipping charges and subject to a fifteen (15) percent restocking fee.
(e) Title and risk of loss passes to Buyer upon delivery of the Goods to the shipping provider. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Ohio Uniform Commercial Code.
5. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within seven (7) days of receipt (the “Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s Sales Confirmation; or (ii) product’s label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller. Buyer acknowledges and agrees that the remedies set forth above are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
(a) Buyer shall purchase the Goods from Seller at the price (“Price”) set forth in Seller’s published price list in force as of the date of Buyer’s purchase. All applicable taxes and duties shall be paid by Buyer. All discount terms, if any, will be calculated from the basis of the original Price.
7. Payment Terms.
(a) Buyer shall pay all amounts due to Seller at time of purchase via Seller’s e-commerce platform. Seller shall be under no obligation to process and ship Goods to Buyer in the event that full payment is not made at time of purchase.
8. Limited Warranty.
(a) Seller warrants to Buyer for a period of thirty (30) days from the date of shipment of the Goods (“Warranty Period”) that the Goods will materially conform to Seller’s published specifications in effect as of the date of shipment and will be free from material defects in material and workmanship. Seller further warrants that it has valid title to the Goods, that the transfer of title to Buyer is valid and free from any security interest, lien, or other interest adverse to Buyer.
(b) EXCEPT FOR THE WARRANTY SET FORTH IMMEDIATELY ABOVE, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Seller shall not be liable for a breach of the warranty set forth in herein unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within seven (7) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(d) Seller shall not be liable for a breach of the warranty if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
(e) Subject to the disclaimers above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate, provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
(f) THE LIMITED REMEDIES SET FORTH IN THIS SECTION 8 SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.
9. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE GOODS, THESE TERMS, OR OTHERWISE, WHETHER ARISING OUT OF OR RELATED TO CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THREE (3) TIMES THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
The limitation of liability set forth above shall not apply to liability resulting from Seller’s gross negligence or willful misconduct.
(b) Buyer warrants that Buyer has read and understands the specifications of the Goods posted on Seller’s website titled “Compatibility.” Seller disclaims liability arising from improper installation and use of Goods, even on a compatible vehicle. Seller disclaims liability for use of Goods in extreme weather or road conditions.
(a) No waiver by Seller of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Seller. In no event shall Seller’s failure to exercise or delay in exercising any right, remedy, power or privilege arising from these Terms operate, or be construed as, a waiver thereof. No single or partial exercise of any of Seller’s rights, remedies, powers or privileges hereunder shall preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11. No Third-Party Beneficiaries.
(a) These Terms are for the sole benefit of the Parties hereto and their respective successors and permitted assigns 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 under or by reason of these Terms.
12. Governing Law.
(a) All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision, statute, regulation, doctrine, rule or court decision (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.
13. Submission to Jurisdiction.
(a) Any controversy or claim arising out of or relating to these Terms, or the breach thereof shall, at either Party’s election, be settled by arbitration administered by the American Arbitration Association under its Consumer Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any Court in the State of Ohio. The rules of the American Arbitration Association may be viewed here: www.adr.org/sites/default/files/Consumer%Rules.pdf.
(a) All notices, request, 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 face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, 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.
(a) If any term or provision, or any portion of any term or provision, of these Terms is found to be invalid, illegal or unenforceable in any jurisdiction, any such finding of invalidity, illegality or unenforceability shall not affect the enforceability of the remainder of these Terms or any other term or provision of these Terms; nor shall such finding operate to invalidate or render unenforceable such term or provision or any portion of any such term or provision in any other jurisdiction.