Terms and Conditions of Sale
Acceptance
The following Terms and Conditions of Sale are applicable to the sale of all products by RK3 Designs® (the “Products”) to any purchaser thereof (“Buyer”). The following Terms and Conditions of Sale constitute the sole and entire agreement between you and RK3 Designs® in connection with your purchase of Products from RK3 Designs®. By submitting an order, you shall be deemed to have accepted these Terms and Conditions of Sale. No terms or conditions contained in any acknowledgement, receipt, email or other communication from you shall bind RK3 Designs® unless otherwise expressly agreed in writing by an authorized officer of RK3 Designs®. Any additional terms you propose in any written or oral communication from you to RK3 Designs® shall be deemed to materially alter these Terms and Conditions of Sale. These Terms and Conditions of Sale shall be deemed to provide you with notification of RK3 Designs®’s objection to any such additional or different terms that you propose to RK3 Designs®. Any amendment, waiver or other alteration of the Terms and Conditions of Sale shall be effective only if made in a writing signed by a duly- authorized representative of RK3 Designs® and Buyer’s attempts to alter such Terms and Conditions of Sale with printed purchase orders, acknowledgements or similar documentation shall be void. In the event of a conflict between these terms and conditions contained in any quotation, purchase order, invoice or final order acknowledgement and those contained in these Terms and Conditions of Sale, the terms contained in these Terms and Conditions of Sale shall govern. Without limiting the generality of the foregoing, RK3 Designs®’s rights and obligations hereunder will not be qualified by or subject to any vendor credentialing, code of conduct, or similar requirements imposed by Buyer upon any of its vendors or suppliers.
Payment Policy
Prices are subject to change without notice. Prices do not include applicable federal, state, regional, and local transactional costs and expenses, including, but not limited to, VAT, GST, freight, taxes, duties, tariffs, or other additional costs imposed by reason of the sale of the Products, which costs and expenses shall be the responsibility of Buyer. Our standard credit terms are Net 30 days for approved accounts. A credit card fee will be charged when used to pay balances on an open account. Past due accounts may incur 1.5% finance charges per month. We accept VISA, MasterCard, American Express, Stripe and PayPal. Upon approval, we may accept wire transfer, check, and ACH/EFT payments. Returned checks will incur a $40.00 returned check fee. Orders placed via RK3 Designs® websites must be paid in advance. Payment options are provided upon checkout. Any claim concerning invoice amounts shall be made within ten (10) business days from date of receipt of invoice by Buyer, or shall be deemed void.
Sales & Use
Currently, RK3 Designs® collects sales or use tax for Texas. Sales tax will be automatically added to your order. You are otherwise responsible for any applicable use tax on your purchases. If you are tax exempt, please call (830) 534-3517 to place your order and provide a tax exemption certificate for your purchase.
Shipping
Buyer is responsible for the payment of all shipping costs. Depending on the Product, special or customer shipping options may be available as specified on RK3 Designs® websites. RK3 Designs® does not guarantee a delivery date. If you have a specified delivery date, please contact RK3 Designs® via e-mail or phone. RK3 Designs® shall pack and mark the Products according to its standard procedures for domestic and/or export delivery. For hazardous shipments, additional charges may apply and be added to your invoice. For “freeze-protect” on latex purchases, additional charges may apply. Unless otherwise agreed in writing, all Products shall be sold and delivered Ex Works (Incoterms 2020) from RK3 Designs® facilities. Title and risk of loss shall pass to Buyer simultaneously with delivery. Buyer assumes all risk and liability for, and hereby agrees to indemnify RK3 Designs® from and against all losses, liabilities, damages and claims whatsoever (whether for personal injury, property damages or otherwise), arising out of transportation, including unloading, storage, handling or use of any Products after title passes to Buyer. Prepaid freight and fuel surcharges may apply to certain orders. No COD shipments. Buyer may arrange, at its costs, for insurance of the Products for shipping. In no event may Buyer re-package or reformulate the Products and then attempt to resell in parts.
Return/Refund Policy
RK3 Designs® may, in its sole discretion, accept returns for unopened, unused material within thirty (30) days of the invoice date. Before returning any Product, Buyer must obtain a written return authorization from an authorized representative of RK3 Designs®, which will be valid for no more than fifteen (15) business days from the date of RK3 Designs® issuance, provided that RK3 Designs® receives the returned Product within the 15 business-day period. Buyer must prepay all freight, however, RK3 Designs® will issue Buyer a credit for freight where RK3 Designs® determines in its sole discretion that nonconforming Product has been delivered. A 10% restocking fee may be charged for processing the return. Refunds will be issued using the same form of payment initially used to make the purchase.
Acceptance
You hereby agree and acknowledge that RK3 Designs®’s sales agents shall not have the authority to bind or in any way alter the terms and provisions of these Terms and Conditions of Sale. Your use of any Products purchased shall be deemed conclusively that all such Products are conforming and satisfactory to you.
Warranty/ Rejecting Non-Conforming Products
RK3 Designs® warrants to you that most unopened Products, with the exception of latex-based Products, will, for a period of six (6) months from the shipment date, conform to the Product specifications. Latex-based Products will, for a period of three (3) months from the shipment date, conform to the product specifications. The obligation of RK3 Designs®, and your sole and exclusive remedy, pursuant to this warranty shall be for RK3 Designs® (at its option) to repair or replace any defective product which is returned to RK3 Designs®’s principal place of business, with transportation charges prepaid and thereafter determined by RK3 Designs® to not comply with the terms of RK3 Designs®’s warranty above. Notwithstanding the foregoing, RK3 Designs® shall have no warranty obligation hereunder if the Product becomes defective in whole or in part as the result of alterations not made by RK3 Designs® or as the result of improper use or storage, or misapplication after it has been delivered to you or damage in shipping. Any warranty made by RK3 Designs® will be expressly subject to proper use of the Products in accordance with any directions for use or other applicable instructions or documentation. No warranty shall apply in situations of error, omission, or negligence in connection with installation, operation, or use of the Products. Upon receipt of the Products, Buyer agrees to immediately inspect and/or test the Products. The Products shall be deemed accepted by Buyer, and all claims with respect to any nonconforming Products shall be deemed waived by Buyer, unless Buyer provides RK3 Designs®, within thirty (30) days of the invoice date, a written notice specifying all defects or discrepancies in the quality or quantity of the Products. Buyer shall permit RK3 Designs® to inspect any damaged or otherwise nonconforming Products. RK3 Designs® will repair or replace non- conforming Products rejected by you, which is Buyer’s sole remedy, provided that you report the non-conforming Products to RK3 Designs® in writing within thirty (30) days of the invoice date. If you fail to notify RK3 Designs® of any non- conformance within thirty (30) days of the invoice date, you shall be deemed to have accepted all such Products as delivered. No repair or replacement under RK3 Designs® warranty obligations will extend or enlarge the warranty period. EXCEPT AS SET FORTH HEREIN, RK3 DESIGNS® MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND YOU ACKNOWLEDGE THAT YOU ARE NOT RELYING UPON RK3 DESIGNS® SKILL OR JUDGMENT TO SELECT OR FURNISH PRODUCTS OR GOODS SUITABLE FOR ANY PARTICULAR PURPOSE OR UPON ANY AFFIRMATIONS OF FACT OR PROMISES OF RK3 DESIGNS® WHICH EXTEND BEYOND RK3 DESIGNS® SPECIFICATIONS. IN THAT REGARD, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, YOU AGREE AND ACKNOWLEDGE THAT YOU ARE ACCEPTING THE PRODUCTS ON AN “AS-IS” AND “WITH ALL FAULTS” BASIS. FURTHERMORE, YOU HEREBY EXPRESSLY AGREE AND ACKNOWLEDGE THAT RK3 DESIGNS® SHALL HAVE NO LIABILITY OF ANY NATURE HEREUNDER BEYOND REPLACEMENT OR REPAIR OF ANY DEFECTIVE PRODUCTS. IN ADDITION, YOU HEREBY EXPRESSLY AGREE AND ACKNOWLEDGE THAT RK3 DESIGNS® SHALL HAVE NO LIABILITY OR OBLIGATION OF ANY NATURE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFITS OR DAMAGE TO PERSONS OR PROPERTY) ARISING OUT OF OR IN ANY WAY RELATED TO YOUR ORDER OR THE PRODUCTS REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL AND / OR EQUITABLE THEORY, AND EVEN IF RK3 DESIGNS® HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION HEREIN TO THE CONTRARY, IN NO EVENT SHALL RK3 DESIGNS®’S TOTAL LIABILITY TO YOU EXCEED THE PRICE ACTUALLY PAID BY YOU FOR THE PRODUCT AT ISSUE.
Force Majeure
RK3 Designs®’s performance shall in all cases be subject to delays resulting from governmental requirements or orders, strikes, or other concerted acts of workmen, fires, floods, explosions, riots, war or armed conflict (declared or undeclared), accidents, acts of God, acts of terrorism, pandemics, epidemics, delays in transportation or inability to obtain necessary labor, materials or supplies or any cause which renders RK3 Designs®’s performance commercially impractical and other causes reasonably beyond RK3 Designs®’s control.
Compliance with Laws
Buyer represents and warrants that the Products will not be used, resold, transferred, exported or reused in any way by Buyer in violation of any laws, regulations of any federal, local, state or other governmental entity, including export/import controls imposed by the U.S. or any other government or government agency.
Severability
In the event that any provision of these Terms and Conditions of Sale shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
Governing Law/Choice of Venue
Your order and all payments are being made to RK3 Designs®’s headquarters in the state of Texas, and the terms and conditions of your transaction (along with all rights, duties and obligations arising hereunder) shall be construed, interpreted and enforced in accordance with the laws of the state of Texas without regard to its conflicts of law rules that would necessitate the application of the laws of any other jurisdiction. You also agree that any claim or action relating in any way to your order (except actions in which RK3 Designs® seeks equitable relief) shall be brought in the Court of Common Pleas of Guadalupe County, Texas, or if based solely upon federal law, in the United States District Court for the state of Texas. You hereby submit to the exclusive jurisdiction of said Courts. Furthermore, you agree that venue in said Courts shall be proper in all respects and covenants not to assert any defense or objection to the venue of said Courts.
Successors and Assigns
You may not transfer or assign any of your rights or delegate any of your obligations hereunder without the express prior written consent of RK3 Designs®. These Terms and Conditions of Sale shall be binding upon, and inure to the benefit of RK3 Designs® and its respective successors and assigns, including any corporation with which, or into which, RK3 Designs® may be merged or which may succeed to its assets or business.
No Transfer of IP
You and RK3 Designs® expressly agree and covenant that except as otherwise expressly provided in a separate written agreement executed by you and RK3 Designs®, the sale of the Products shall not be construed as granting any right, license, interest or claim of any nature in any trademark, service mark, patent, trade secret, invention, intellectual property right, or confidential information of RK3 Designs®. You agree and covenant not to copy, reverse engineer or otherwise decompile the Products for any commercial purpose.
Export Terms
You shall be solely responsible for complying with any and all laws and/or regulations governing the exportation of any Products delivered hereunder from the United States and the importation of any such Products in the country of destination, including, without limitation, the payment of any taxes and/or duties thereof.
No Waiver
The waiver by RK3 Designs® of any term, covenant, agreement or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, agreement or condition herein contained. No covenant, term, agreement or condition of these Terms and Conditions of Sale shall be deemed to have been waived by a party unless such waiver is in writing by such party.
Entire Agreement
These Terms and Conditions of Sale contain the entire understanding between the parties hereto with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements and understanding, inducements or conditions, express or implied, oral or written, among you and RK3 Designs® with respect to your purchase of the Products. These Terms and Conditions of Sale may only be amended in writing and signed by an authorized representative of RK3 Designs®.
Indemnity
You shall and hereby covenant to protect, defend, indemnify and hold harmless RK3 Designs® (which for this purpose shall include RK3 Designs®’s parent companies, affiliates, subsidiaries, associates, directors, officers, employees, agents, successors and assigns) of, from and against any and all losses or damages, including (without limitation) any judgments, civil penalties, interest, expenses and costs including (without limitation) attorneys’ fees, claims, lawsuits, actions, proceedings or investigations (“Claims”) which are made or brought against RK3 Designs® (or other person indemnified hereunder) by any person, government or entity arising out of, in connection with or in any way related to (a) the death of or injury to any person, or damage to any property, that resulted or is alleged to have resulted from the negligence or willful misconduct of you, your employees, subcontractors, and agents, in the performance of your obligations hereunder, or from your use of the Products sold hereunder; (b) any drawings, schematics, promotional or advertising matter, guarantees, warranties, labels, or instructions furnished by you or submitted to RK3 Designs® by you; (c) any infringement of any patent, design, trade name, trademark, copyright, trade secret, or any other intellectual property right or entitlement of any third party due to your use of the Products; or (d) any environmental, property or toxic tort claim, lawsuit, judgment, loss, civil penalty or action.