THESE TERMS AND CONDITIONS APPLY TO ALL TRANSACTIONS EXCEPT LEASES, AND RENTAL AGREEMENTS, WHICH CONTAIN APPLICABLE TERMS AND CONDITIONS THEREIN.
(1) ACCEPTANCE
This document is an offer by the Buyer, which will become a contract when acknowledged by the signature of the Mobile Communications America, Inc. & Subsidiaries (herein called “MCA”) Order Editor, and the banking, negotiation or other use of the down payment shall not constitute an acceptance hereof by MCA. 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 of America, Inc.
(2) DEFINITIONS
All reference to Seller herein shall mean Mobile Communications of America, Inc. & Subsidiaries and all references to Buyer shall mean the Customer named on the other side of this document.
(3) SHIPPING AND HANDLING
Shipping and Handling charges when shown separately on the other side of this document include (prepaid) domestic surface and air freight which will be included on the applicable invoice. (e.g. UPS, Parcel Post, Common Carrier.) Freight charges are subject to frequent change and in consideration 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.
(4) DELIVERY AND TITLE
Unless otherwise stated on the other side of this document, all deliveries are FOB Seller’s Office. Shipping or delivery dates are best estimates only. Seller reserves the right to make deliveries in installments and the contract shall be severable as to such installments. Delivery delay or default of any installment shall not relieve Buyer of its obligation to accept and pay for remaining deliveries. Claims for shipment shortages shall be deemed waived unless presented to “MCA” in writing within forty-five (45) days of delivery of each shipment. IN NO EVENT SHALL “MCA” BE LIABLE FOR INCREASED COSTS, LOSS OR 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 right of possession in the products until Buyer makes full payment. Buyer agrees to cooperate in whatever manner necessary to assist Seller in perfection of said security interest upon request.
(5) PACKAGING AND PACKING
All packaging and packing shall be in accordance with good commercial practice.
(6) PAYMENT
The Buyer shall make net payment to Seller in accordance with the terms stated on the other side of this document at “MCA” offices located at 1640 Norman Park Drive Tallahassee, Florida 32304 or at such other places as “MCA” may designate. Payment shall be made in no later than (30) days after the date of invoice for each product, accessory, or other charge unless stated otherwise on the other side of this document.
(7) TAXES
Except for the amount, if any, of state and local tax stated on the other side of this 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 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 Buyer shall pay to Seller the fu ll amount of any such increase no later than ten (10) days after receipt of an invoice therefor.
(8) TERMINATION AND CANCELLATION
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 necessary 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 any liability to Buyer.
Buyer may by written notice to Seller within five (5) days of the date hereof cancel any contract arising hereunder, for other than the default of Seller and at its convenience, in which event Buyer shall pay Seller twenty percent (20%) of the total price for all products and accessories listed on the other side of this document as a restocking charge.
(9) FCC MATTERS
The Buyer is solely responsible for obtaining any licenses or other authorizations required by the Federal Communications Commission and for complying with FCC rules, and with the rules and regulations of 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 at no charge to the Buyer.
(10) 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 South Carolina.
(11) FINAL ACCEPTANCE
Failure to make any claim within five (7) days after receipt of such product covered hereby shall constitute an irrevocable acceptance thereof.
(12) 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, repair or replace product(s) 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 an open account.
(13) WAIVER
The failure of Seller to insist, in any one or more instances, upon the performance of any 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 condition or the future exercise of such right but the obligation of the Buyer with respect to such future performance shall continue in full force and effect.
(14) GENERAL
- No modification hereof shall be binding upon Seller unless such modification is in writing signed by a duty authorized representative of Seller.
- 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.
- If any part is contrary to, prohibited by or deemed invalid under 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.
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