Terms and Conditions

Terms and Conditions of Sale

 

 

Terms and Conditions of Sale

 

The following terms and conditions apply to any sale of goods or equipment by Mobility Toys, Inc. (MTI).

1. GENERAL: OFFER AND ACCEPTANCE. MTI’s proposal or invoice is an offer by MTI to Purchaser and acceptance of the offer therein is expressly limited to these terms and conditions.  Any reasonable expression of the purchaser’s acceptance of the offer contained in MTI’s proposal or invoice, including Purchaser’s acceptance to the goods and/or equipment shipped and or delivered to purchaser (the “Goods”), constitutes and acceptance of all these Terms and Conditions. Upon acceptance by Purchaser, MTI’s invoice together with these Terms and Conditions shall be the final written expression of the agreement between MTI and Purchaser, constituting the entire contract between them and superseding all previous communications, either oral or written. MTI’s invoice together with these Terms and Conditions and the contract resulting from them (the “Contract”) may be waived, varied, modified or amended only by a writing signed by an authorize representative of MTI.

 

2. SHIPMENT: DELIVERY; CLAIMS. Unless otherwise agreed in writing by the parties, the cost for shipment and delivery of the Goods shall be borne by the Purchaser. Delivery shall be FOB MTI’s facility in Rancho Cucamonga, CA. Delivery of the Goods to the first carrier shall constitute delivery to the Purchaser. Any delivery information including time of shipment is approximate. MTI will exercise its best efforts to make delivery as scheduled. MTI shall not be liable for any loss or damage or failure to deliver or delays in delivery caused by labor disputes (including strikes, slowdowns and lockouts), fires, floods, or governmental acts or regulations, riots inability to obtain supplies, materials or shipping space, plant breakdowns, power failure, delays or interruption of carriers, accidents, Acts of God or other causes beyond MTI’s control. Furthermore, MTI shall not be liable for any incidental, special or consequential damage resulting from MTI’s failure to meet schedules for the forgoing or any other causes. ALL RISK OF LOSS OR DAMAGE IN TRANSIT SHALL BE ON THE PURCHASER AND ALL CLAIMS FOR LOSS OR DAMAGE IN TRANSIT OR FOR NON-DELIVERY SHALL BE MADE BY THE PURCHASER AGAINST THE CARRIER.

 

3. INSPECTION. Within five (5) days of receipt of the Goods, Purchaser shall inspect the Goods to check for shortages, loss or damage in transit and any other nonconformity. Purchaser shall thereafter notify MTI of any nonconformity (other than that relating to loss or damage in transit, which claims shall be made in accordance with the terms in Section 2 herein) within ten (10) business days of inspection. The failure to provide MTI with such written notice within this time period shall constitute an unqualified acceptance of the Goods and a waiver by Purchaser of all claims for shortages, incorrect material and other similar nonconformities, including a waiver of any right of revocation of acceptance.

 

4. CANCELLATION/RESTOCKING FEE. The contract is not subject to cancellation by Purchaser unless Purchaser obtains specific written approval from MTI. If the contract is cancelled within 15 days of receipt of Goods, Purchaser shall pay MTI reasonable cancellation charges of 10% (freight charges not refundable), as invoiced by MTI, for expenses already incurred by MTI in perfoMTIng or preparing to perform the Contract, cancellation cost’s and MTI’s profit. Contracts cancelled after 15 days, but before 30 days have expired, Purchaser shall pay MTI a 20% cancellation charge (freight charges not refundable), as invoiced by MTI. No returns after 30 days. CUSTOM ORDERS: Goods are non-returnable. All sales are final.

 

5. WARRANTY POLICY. THE WARRANTY SET FORTH IN THIS AGREEMENT IS STRICTLY LIMITED TO EACH MANUFACTURES SEPERATE TERMS AND IS IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURCHASE. BY MEETING WARRANTY OBLIGATIONS, WE REJECT ANY ADDITIONAL CLAIMS OF RETRIBUTION AND/ OR COMPENSATION. This Warranty extends only to the original Purchaser and is non-negotiable. When claiming Warranty services, the date of delivery to the consumer must be proven by purchase receipts (invoice or delivery note). A Warranty Authorization Number will be issued allowing parts to be returned/exchanges for service, repair or replacement. Warranty parts will be shipped at no charge from specified manufactures to MTI via UPS Ground. Delivery costs that result from requested expedited shipments will be invoiced. MTI is not bound to any service under warranty unless purchase was made at the dealers (MTI) facility and will therefore only be bound to no cost warranty repair if the manufactures Warranty specifically acknowledges MTI’s responsibility to do so.

PLEASE BE SURE TO CAREFULLY READ YOUR MANUFACTURER WARRANTY.

 

6. DISCLAIMER; LIMITATIONS OF LIABILITY. Purchaser understands and agrees that MTI shall not be liable for loss of use, income or profit incidental, special or consequential or other similar arising, directly or indirectly, out of or occasioned by the operation, use installation, repair or replacement of the Goods whether such damages are based on a claim of breach or implied Warranty (including merchantability or fitness of a particular purpose), tortuous conduct (including negligence and strict liability) or any other cause of action. Purchaser specifically understands and agrees that its sole and exclusive remedy for breach of warranty, tortuous conduct or any cause of action against MTI shall be the remedy of repair and replacement provided in Section 5 above.

 

7. INDEMNIFICATION. MTI has supplied Goods in accordance with safety and health laws, ordinances and regulations. It is the responsibility of Purchaser to ensure that the Goods, when installed and operated, will be in compliance with safety requirements imposed by law or regulation and otherwise adequate to safeguard against injuries or death to persons and damage to property. Purchaser herby agrees at its own expenses, including but not limited to reasonable attorney’s fees arising out of or resulting from any injury or death to persons or damage to property caused by the installation (except where accomplished by MTI’s authorized personnel), use of operation of the Goods (except claims for repairs or replacement or defective parts as provided in Section 5 herein) whether the same arises from negligence or whether under statute, regulation or rule otherwise, and even though such damages, injury, loss or expenses are attributable to the sole, joint, concurrent or contributory negligence of MTI, its agents, or employees.

 

8. PAYMENT.  Purchaser shall pay the net amount due as stated per invoice. Purchaser shall neither retain payment of account of any such claim nor shall Purchaser offset any claim against the purchase price if the claim has been accepted by MTI in writing as provided in Section 2 hereof. If the Purchaser fails to fulfill the terms of the payment or if MTI has any doubt at any time regarding the Purchaser’s responsibility, MTI may decline to make further deliveries and may claim payment of all invoices even if not yet due for payment.

 

9. DELINQUENT PAYMENT; ATTORNEYS’ FEES; INTEREST. In the event Purchaser fails to make payment when due, the purchaser shall pay, in addition to all other sums payable hereunder, the reasonable costs and expenses incurred by MTI in connection with all actions taken to enforce collection or to preserve and protect its rights under this Agreement, whether by legal proceedings or otherwise, including without limitation reasonable attorneys fees and court costs. In addition, Purchaser shall be responsible for interest at a rate of one and one half percent (1.5%) per month on the amount of the unpaid payment.

 

10. SEPARABILITY, INVALIDITY. If any portion of the contract shall for any reason be held by a court of competent jurisdiction to be invalid and unenforceable, the valid and enforceable provisions will continue to be given effect and bind the parties hereto.

 

11. GOVERNING LAW. The instrument shall be deemed an Agreement made under the laws of the state of California, and for all purposes shall be construed and enforced in accordance with and governed by the state of California.