Order Acceptance and Cancellation.
You agree that your order is an offer to buy, under these Terms, all products listed in your order. All orders must be accepted by us or we will not be obligated to sell the products to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation email with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between the Company and you will not take place unless and
until you have received your order confirmation email. You have the option to cancel your order at any time before we have sent your order confirmation email by calling our Customer Service Department at 516-334-6401.
Prices and Payment Terms.
- All prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for a product will be the price advertised on this Site at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in your order confirmation email. Price increases will only apply to orders placed after the time of the increase. Posted prices do not include taxes or charges for shipping and handling or insurance, if applicable. All shipping and handling or insurance charges will be added to your total price, and will be itemized in your order confirmation email or final invoice. We strive to display accurate price information; however, we may on occasion make inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability. We are not responsible for pricing, typographical, or other errors in any offer by us and we reserve the right to correct any such errors and to cancel any orders arising from such errors.
- All prices listed on this Site are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by you as a result of placing an order on this Site, and you are responsible for all such charges, costs, and taxes. You represent and warrant that you are a reseller of any products purchased on this Site and that in connection with any orders placed on the Site, you: (i) are not obligated to pay taxes, or (ii) have a valid resale or other exemption certificate (a “Resale Certificate”), as applicable. You agree to provide a relevant Resale Certificate or other documentation, if any, to the Company promptly upon request. The Company shall not be responsible for any sales taxes or other penalties if a Resale Certificate is not accepted by the applicable taxing authority, and you shall be solely liable for and obligated to pay for any sales tax, interest, and penalties assessed by a taxing authority or any other third party in connection with, arising out of, or otherwise resulting from the purchase of any products from the Site.
- Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. All payments must be made by wire transfer unless you otherwise qualify for one of the following types of payment, as determined by us in our sole and absolute discretion: credit card, PayPal, Cash on Delivery (“COD”) or COD certified, and Behalf payments. If paying by credit card, you represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
- If you place an order for products at list price, we will hold the products for two (2) days. If payment is not received within such time, we may no longer hold the products and they are no longer guaranteed to be available for purchase. You may contact us to make
arrangements to hold products for longer than two (2) days. Any such arrangements may require a deposit in our sole discretion. If you make an offer to purchase products for a price other than the list price advertised on this Site, the availability of products is not guaranteed until such offer is accepted by us. Any such offers may be accepted or rejected in our sole discretion. Upon our acceptance of an offer to buy products on our Site, we will hold the products for a maximum of two (2) days until payment is received.
- From time to time we may list items for real time, open auctions. We will set a minimum reserve price for any products subject to auction on the Site. We reserve the right not to sell products subject to any such auction if the winning bid does not meet the minimum reserve price. By placing a bid for products in an auction, you agree that should your bid win an auction on the Site, you will make payment for such products upon conclusion of the auction according to these Terms. In order to participate in any such auctions, please see the applicable auction page for any additional specific terms and conditions. Auction items are not subject to our return policy. Any return policies applicable to specific items listed for auction will be provided along with the other terms and conditions of auction on the applicable auction page.
As a member of the Site, you may be eligible from time to time to receive an offer to apply for promotional payment terms (“Promotional Payment Terms”), which Promotional Payment Terms will enable you to make payment for purchases within thirty (30) days following the date of order confirmation (as opposed to making full payment prior to our acceptance of an order), unless and until the Company provides notice to you that you are no longer permitted to place orders on the Promotional Payment Terms. All purchases made under the Promotional Payment Terms shall be paid directly by you via wire transfer and you will not be eligible to use any other form of payment that is otherwise permitted under Section 3(c). You agree to pay a late fee in an amount equal to one percent (1%) of any payment, or portion thereof, that is more than five (5) days late, compounded monthly, or the maximum amount allowed by applicable law, whichever is less. Such late charge shall be paid without prejudice to any other rights of We Sell Cellular. Should We Sell Cellular elect to engage attorneys or collection agencies or initiate any legal process to recover any amounts owed by you, you agree to pay all collection costs including any collection agency fees and/or reasonable attorney’s fees. All other terms set forth herein shall apply with respect to the Promotional Payment Terms. Your right to participate in the Promotional Payment Terms will be contingent upon certain background and credit checks provided by a third-party service provider and the Company may revoke your right to participate in the Promotional Payment Terms at any time, in the Company’s sole and absolute discretion, by providing notice to you that you are no longer permitted to participate in the Promotional Payment Terms. In order to determine eligibility for the Promotional Payment Terms, you will be required to execute a separate written agreement consenting to, authorizing and instructing the Company and such third-party service provider to provide such background information, consumer report or similar information as may be necessary for us and such third-party service provider to determine your eligibility to receive the Promotional Payment Terms.
Shipments; Delivery; Title and Risk of Loss.
- We will arrange for shipment of the products to you. Please check the shipping and insurance page for specific delivery options and pricing. You will pay all shipping and handling charges (and the cost of any shipment insurance, as applicable) unless otherwise specified in the order confirmation. You are responsible to correctly input your shipping address and freight option.
- Title and risk of loss pass to you upon our transfer of the products to the carrier. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments or damage to shipments once placed with the carrier. You are responsible to select and pay for any shipment insurance.
Returns and Refunds.
Returns and refunds will be made in the sole discretion of the Company. Please see our terms and conditions for returns and refunds at returns policy
Manufacturer’s Warranty and Disclaimers; Limitation of Liability.
- We do not manufacture or control any of the products offered on our Site. The availability of products through our Site does not indicate an affiliation with or endorsement of any product, service, or manufacturer. Accordingly, we do not provide any warranties with respect to the products offered on our Site.
- ALL PRODUCTS OFFERED ON THIS 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.
- SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
- YOU AFFIRM THAT WE 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 YOU.
- Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS AND SERVICES YOU HAVE ORDERED THROUGH OUR SITE.
Import and Export.
- For Domestic Purchasers. This Section 8(a) shall apply to all purchasers domiciled within the United States. You agree to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below. Products purchased from the Site may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), and the Foreign Asset Control Regulations administered by the Office of Foreign Assets control in the U.S. Department of Treasury, and supplemental regulations (collectively, “Export Regulations”). At the company’s sole discretion, we may refuse to ship product to certain entities and/or locations in order to comply with United States laws and regulations.
- For International Purchasers. In the Company’s sole discretion, we may refuse to ship products to certain locations outside the United States in order to comply with United States laws and regulations. All purchasers located outside of the United States agree to comply with all applicable laws and regulations of the applicable destination country for any products purchased from this Site, including without limitation all applicable import laws and regulations.
- For all Purchasers. If you are a distributor or reseller (each, a “Distributor/Reseller”), you shall comply with all applicable export control and trade embargo laws, rules and regulations, including but not limited to the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations and the regulations as governed by the Office of Foreign Assets Control (OFAC), relating to the performance of your obligations hereunder, and shall not use, resell, export, re-export, distribute, transfer, dispose or otherwise deal with the products, or any spare parts, warranty items or technical data/technology related to the products, directly or indirectly, without first obtaining all necessary written consents, permits, and authorizations, and completing such formalities as may be required by any such laws, rules and regulations. Upon reasonable request, the Company shall provide Distributor/Reseller with assistance in determining the application of such laws, and in applying for necessary authorizations and competing required formalities. Failure by the Distributor/Reseller to comply with applicable export-control laws, rules and regulations shall constitute a material breach of the Agreement. Distributor/Reseller shall not do anything that would cause the Company to be in breach of the applicable export-control laws, rules and regulations, and shall protect, indemnify and hold the Company harmless from any claim, damages, liability costs, fees, and expenses incurred by the Company as a result of the failure or omission of Distributor/Reseller to comply with such laws, rules and regulations. You agree that all goods purchased be shipped within all legal requirements. No goods will be shipped to any OFAC-sanctioned country or territory or to any individual or entity specified as “Specially Designated Nationals” by OFAC.
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, hurricane, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
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 New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
Waiver of Jury Trial and Binding Arbitration.
- YOU AND THE COMPANY ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE, AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
- The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules (the “AAA Rules”) then in effect, including, if appropriate, the Procedures for Large, Complex Commercial Disputes, the International Commercial Arbitration Supplementary Procedures, and the Supplementary Rules for Class Arbitrations. The arbitration shall be governed by New York law and shall occur at a venue to be agreed upon in writing by the parties hereto in New York County, New York. YOU ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY WITH RESPECT TO ANY SUCH CLAIM. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.
- You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention to do so within 30 days of the date that you first accept these Terms. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy. You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR THE COMPANY WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
- If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced. You agree that with respect to any claim or controversy excluded from arbitration pursuant to the terms of this Section or determined by an arbitrator or court of competent jurisdiction to be excluded from this Section (“Excluded Claim”), you hereby irrevocably submit to the exclusive jurisdiction of the state and federal courts sitting in New York County, New York for the adjudication of any Excluded Claim, and hereby irrevocably waive, and agree not to assert in any suit, action or proceeding, any claim that you are not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed or operate to preclude a party from bringing suit or taking other legal action against the other party in any other jurisdiction to enforce a judgment or other court ruling in favor of such party. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THESE TERMS OR ANY TRANSACTION CONTEMPLATED HEREBY.
You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 13 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of the Company.
No Third Party Beneficiaries.
These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
- To You: We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
- To Us: To give us notice under these Terms, you must contact us as follows: (i) by facsimile transmission to 516-334-6401; or (ii) by personal delivery, overnight courier or registered or certified mail to PhoneX, Inc. at 18 West 18th Street, New York, NY 10011. We may update the facsimile number or address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
If any provision of these Terms is invalid, illegal, void, or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.