Terms and Conditions
THESE TERMS AND CONDITIONS APPLY TO ALL TRANSACTIONS. LEASES, CONDITIONAL SALES, CHATTEL MORTGAGES, RETAIL INSTALLMENT CONTRACTS, AND RENTAL AGREEMENTS MAY CONTAIN APPLICABLE TERMS AND CONDITIONS PRINTED THEREI
- ACCEPTANCE. This document is an offer by the Buyer, which will become a contract when acknoledged in writing by Mobile Communications America and the banking negotiation or other use of the down payment shall not constitute an acceptance hereof by Mobile Communications America (Seller hereinafter). It is agreed that sales are made only on the terms and conditions herein. Seller shall not be bound by terms and conditions in Buyer's purchase order or elsewhere unless expressly agreed to in writing. In the absence of written acceptance of these terms, acceptance of or payment for purchases hereunder shall constitute an acceptance of these terms and conditions. Any contract evidenced by this document is assigned to Mobile Communications America.
- DEFINITIONS. All references to Seller herein shall mean Mobile Communications America, and all references to Buyer shall mean the Customer named in the attached document.
- SHIPPING AND HANDLING. Shipping and Handling charges when shown separately in the attached document include (prepaid) domestic surface and airfreight which will be included on the invoice (e.g., UPS, Parcel Post, Common Carrier). Freight charges are subject to frequent changes and in considerations of Seller's agreement to hold to the charges stated, Buyer agrees to pay such amount without regard to the actual charges applicable at the time of shipment. It is understood that Seller will not have to provide Buyer with any copies of carrier freight bills.
- DELIVERY AND TITLE. Unless otherwise stated on the attached form, all deliveries are FOB Seller's business location. Shipping and delivery dates are best estimates only. Seller reserves the right to make deliveries in installments and the contract will be severable as to such installments. Delivery delay or default of any installment shall not relieve the Buyer of its obligation to accept and to pay for remaining deliveries. Claim for shipment shortage shall be deemed waived unless presented to Mobile Communications America in writing within forty-five (45) days of delivery of each shipment. IN NO EVENT SHALL MOBILE COMUNICATIONS AMERICA BE LIABLE FOR INCREASED COSTS, LOSS OF PROFITS OR GOOD WILL OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES due to late or non-delivery of products. Title to products sold shall pass to Buyer at the FOB point. Seller shall retain a security interest and the right of possession in the products until Buyer makes full payment. Buyer agrees to cooperate in whatever manner necessary to assist Seller in perfection on said security interest upon request.
- COMMERCIAL WARRANTY. Mobile Communications America provides no warranty for products sold unless otherwise noted in writing on the attached form. Manufacturers of products sold provide warranties of varying periods and coverage. Written copies of manufacturer's warranties are available upon request.
- EQUIPMENT PERFORMANCE. Because each radio system is unique, Seller disclaims liability for range, coverage, or operation of the system as a whole except by a separate written agreement by an officer of the Seller.
- PAYMENT. The Buyer shall make payment in accordance with the terms stated on the attached document at Mobile Communications America, P.O. Box 37904, Dept. #125, Charlotte, NC, 28237-7904 or at such other place as Mobile Communications America may designate. Payment shall be made upon delivery unless stated otherwise on the attached document.
- TAXES. Except for the amount, if any, of state and local tax stated on the attached document, the prices set forth herein are exclusive of any amount for Federal, State, and/or local excise, sales, use, property, retailer's occupation, or similar taxes. If any such excluded tax is determined to be applicable to this transaction or if Seller is required to pay or bear the burden thereof, the prices set forth herein shall be increased by the amount of such tax and any interest or penalty thereon, and the Buyer shall pay to the Seller the full amount of any such increase no later than ten (10) days after receipt of an invoice therefore.
- TERMINATION AND CANCELLATION
- A. Seller shall not be liable for any delay or failure to perform due to any cause beyond its control. Causes include, but are not limited to, strikes, acts of God, acts of the Buyer, interruptions of transportation or inability to obtain labor, materials, or facilities, default of any supplier, or delays in FCC frequency authorization or license grant. The delivery schedule shall be considered extended by a period of time equal to the time lost because of any excusable delay. In the event Seller is unable to wholly or partially perform because of any cause beyond its control, Seller may terminate any contract without liability to the Buyer.
- Buyer may by written notice to Seller within fifteen (15) days of the date hereof cancel any contract arising hereunder, for other than the default of the Seller and at Seller's convenience, in which event Buyer shall pay Seller twenty percent (20%) of the total price of all products and accessories listed on the attached document as a restocking charge.
- TECHNICAL ASSISTANCE. Warranties shall not be enlarged and no obligation or liability shall arise out of Seller's rendering of technical advice, facilities, or service in connection with Buyer's purchase of the products furnished.
- FCC MATTERS. The Buyer is solely responsible for obtaining any licenses or other authorizations required by the Federal Communications Commission (FCC) and for complying with FCC rules and with the rules and regulations fo any other federal, state, or local regulatory agency. Neither Seller nor any of its employees is an agent or representative of the Buyer in FCC matters or otherwise. Seller, however, may assist in the preparation of the license application.
- CONTROLLING LAW. This document and the rights and duties of the parties shall be governed and interpreted according to the laws of the State of North Carolina.
- FINAL ACCEPTANCE. Failure to make a claim within five (5) days after receipt of each product covered hereby shall constitute an irrevocable acceptance thereof.
- LIMITATION OF LIABILITY. Seller's total liability is limited to the total price of the products sold hereunder. Buyer's sole remedy is to request Seller at Seller's option to either refund the purchase price, or to repair or replace products that are not as warranted. In no event will Seller be liable for incidental or consequential damages. No action shall be brought for any breach of this contract more than one (1) year after the accrual of such cause of action except for money due upon open account.
- WAIVER. The failure of Seller to insist in any one or more instances, upon the performance of the terms, covenants, or conditions herein, or to exercise any right hereunder shall not be construed as a waiver or relinquishment of the future performance of any such term, covenant, or conditions or the future exercise of such right, but the obligation of the Buyer with respect to such future performance shall continue in force and effect.
- Buyer acknowledges that it has read and understands these terms and conditions and agrees to be bound by them, that it is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter hereof.
- No modification hereof shall be binding upon Seller unless such modification is in writing signed by a duly authorized representative of Seller.
- If any part is contrary to, prohibited by, or deemed invalid under the applicable laws or regulations, such provision shall be deemed omitted to the extent so contrary prohibited or invalid, but remainder shall not be invalidated and shall be given effect so far as possible.