TERMS AND CONDITIONS OF SALE
1. Payment: Payment of the purchase price for goods and/or services acquired from CTB WIRELESS, INC. shall be made pursuant to the terms set forth on each invoice. Applicant agrees to pay all charges according to the payment terms established in each invoice. The entire outstanding balance due on all invoices shall become due to CTB WIRELESS, INC. (“CTB”) in full immediately upon default in the payment of any invoice.
2. Interest: Applicant agrees to pay interest at the highest rate permitted by law on any payment past due, pursuant to the terms set forth on each invoice until collected.
3. Accurate Information: Applicant hereby certifies that the information furnished under this application and on any financial statements furnished in connection herewith is true and correct and that this information is being furnished to CTB WIRELESS, INC. for the purpose of inducing CTB WIRELESS, INC. to extend credit to Applicant, and understands that CTB WIRELESS, INC. intends to rely upon such information as correct.
4. CTB WIRELESS, INC. Expenses: Applicant shall pay to CTB WIRELESS, INC. all costs and expenses, including, without limitation, reasonable attorney’s fees of amount owed, and the fees of any collection agency and court costs, incurred by CTB WIRELESS, INC. in exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions, or provisions hereunder.
5. CTB’s Terms Control: These CTB Terms and Conditions of Sale (“Terms”) shall control and prevail over any contrary terms in Purchaser’s purchase order.
6. Additional Transportation Charges: CTB shall not be responsible for spotting, switching, demurrage or other transportation charges unless agreed to in writing.
7. Force Majeure: CTB shall arrange reasonably prompt shipment of Products, F.O.B. the point or points of delivery designated by CTB, pursuant to terms hereof, provided, however, that CTB shall not be responsible for delays in deliveries due to fire, flood, tornado, earthquake, war, riot, insurrection, strike, lockout, slowdown, epidemic, quarantine restriction, delay in transportation, car shortage, labor shortage, materials shortage, manufacturing facility shortage, accident at CTB’s warehouse, boycott, embargo or any act or regulation of government or governmental authority (including, without limitation, preference, allocation or priority systems for government), force majeure and other contingencies beyond CTB’s control resulting in impossibility of performance of CTB’s duties and obligations hereunder.
8. Risk of Loss: Risk of loss, damage to and title to Products shall pass upon delivery thereof to Purchaser’s carrier or other point or points of delivery designated by CTB as provided in these Terms. Upon receipt of shipment, it shall be the responsibility of purchaser or the consignee receiving shipment to check materials and secure written acknowledgment from delivering carrier for any shortages, loss or damage. Notification of such shortages, loss or damage must also be made in writing to CTB.
9. Prices: Purchaser shall purchase Products in accordance with Prices, as determined by CTB, that are prevailing at time of shipment.
10. Termination of Service for Unauthorized or Abnormal Usage: We reserve the right to terminate your service for unauthorized or abnormal usage. Unlimited does not mean unreasonable and users must adhere to Fair Usage Policy (FUP) in the Terms of Service. Unlimited voice services are provided for live dialogue between two individuals. Unreasonable use includes, but is not limited to, multi-party calling (separate calls initiated by you but not bridged together), reselling of service through the use of external equipment (i.e. Simbox or any other type of equipment that allows reselling of service) or by tethering Wireless service, monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, or other connections that do not consist of uninterrupted live dialogue between two individuals. Data service is available with qualified plans. Unreasonable data use includes, but is not limited to tethering the phone to another phone, computer, modem or other equipment for the purpose of using data services. If you are on a rate plan that includes unlimited voice or text, we have the right, at our discretion, to suspend or terminate your account for any excessive or abusive use. Review the Fair Usage Policy (FUP) in the Terms of Service for additional information. Promo plans are subject to data throttling.
11. Manufacturer’s Warranty: CTB shall pass through to Purchaser such warranties as are provided to CTB for such Product for each Product purchased by Purchaser pursuant to this Agreement.
12. DISCLAIMER OF WARRANTIES: THE MANUFACTURER’S WARRANTY PASSED ON THROUGH BY CTB TO PURCHASER HEREUNDER, IF ANY, SHALL BE IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. LIMITATION OF LIABILITY: PURCHASER’S SOLE AND EXCLUSIVE REMEDY RELATING TO THIS AGREEMENT AND/OR PRODUCTS SHALL BE THE REMEDY, IF ANY, AFFORDED BY THE MANUFACTURER OF SUCH PRODUCTS TO PURCHASER AND/OR PURCHASER’S CUSTOMERS AS PROVIDED BY, AND WITHIN THE TIME PERIOD SPECIFIED THEREIN, NO OTHER REMEDY (INCLUDING, WITHOUT LIMITATION, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR LOST PROFITS, LOST SALES, INJURY TO PERSONS OR PROPERTY OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS) SHALL BE AVAILABLE TO PURCHASER OR PURCHASER’S CUSTOMERS.
14. Governing Law and Forum: These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of California, United States of America; provided, however, that any and all disputes hereunder shall be decided exclusively by litigation in state or federal courts located within the County of Los Angeles, California Division, United States of America.
15. No Returns; No Refunds: Products are returnable only as provided in the applicable manufacturers warranty for such Products, and Products otherwise shall be nonrefundable and the Prices paid shall be nonrefundable.
16. General Provisions: (a) No modification hereof shall be binding upon either party unless the modification is in writing and signed by a duly authorized representative of both parties. The failure of CTB WIRELESS, INC. to insist, in any one ore more instances, upon performance hereunder, or to exercise any right hereunder, is not a waiver of the future performance of any term, covenant or condition or the future exercise of such right; (b) If any provision of this Agreement is unenforceable, such unenforceability shall not affect the remainder of this Agreement unless a failure of consideration would thereby result; (c) This Agreement shall be binding upon and, except as otherwise provided herein, shall inure to the benefit of the parties hereto and their respective successors and assigns; (d) The rights and remedies granted herein are in addition to those otherwise available in equity; (e) The terms and conditions of this contract and of any sales and payments made pursuant hereto are performable in Los Angeles, California; (f) Each and every purchase order made by purchaser of product from CTB shall be subject to the terms and conditions set forth herein.