I. GENERAL TERMS:
A. Ice Services LLC hereby agrees to sell to Purchaser, and Purchaser hereby agrees to buy from Ice Services LLC, products, subject to the provisions of these Terms. Purchaser accepts that Ice Services LLC sells products to others that offer products directly in competition with Purchaser.
B. Purchaser agrees to pay Ice Services LLC for all product purchases when due. Past due payments, including from the date of sale in the case of checks returned unpaid for any reason, shall be assessed a late charge of one and one -half percent (1.5%) per month of the total amount overdue plus any applicable fees associated with these items, or the highest rate permitted by law, whichever is less.
C. These Terms do not, and shall not be deemed to, create any type of agency, joint venture, employment or similar relationship between Purchaser and Ice Services LLC. Purchaser shall not represent itself as having any relationship to Ice Services LLC. Purchaser does not have, nor shall it represent itself as having, the power to obligate or restrict Ice Services LLC.
D. These Terms shall control and prevail over any contrary terms in any Purchaser purchase order. These Terms are for delivery to a commercially acceptable shipping carrier, arranged by Ice Services LLC. Title to the products sold and risk of loss shall pass to Purchaser at the shipping point. All of Purchaser’s sales of products to third parties (except services that are sold under the brand of, and billed by, a service provider or other carrier (“Carrier),which shall be entitled to establish the retail price of that such services may be billed by any subscriber of such services) shall be for Purchaser’s account and shall be made at the retail prices and on the terms established by Purchaser in its sole discretion, subject to applicable law. Ice Services LLC may from time to time recommend a retail price for such products, but Purchaser is not obligated to sell the products at those suggested prices. None of Ice Services LLC’s employees are authorized to dictate the price at which Purchaser sells any product to its customers.
E. Unless otherwise agreed to in writing by Ice Services LLC, all sales to Retailer shall be C .O.D. Upon approval of this application, Ice Services LLC, in its sole discretion, may assign Applicant a maximum credit line, and shall have the right to increase, decrease or terminate Applicant ’s credit privileges under this Application at any time without prior notice to Applicant, except as otherwise provided by law.
F. Upon receipt of shipment, Purchaser shall be solely responsible to check materials and secure written acknowledgment from the delivering carrier for any shortages or damage. If Purchaser has not received all of the units of product ordered (a “short-shipment”) or if product is damaged, Ice Services LLC must be notified of such short-shipment or damage in writing within three (3) business days of receipt of that product. Such notification must include shipping and receiving documentation (as reasonably determined by Ice Services LLC),the serial numbers of missing product (if that product has been serialized),and such other information as may be reasonably required by Ice Services LLC from time to time.
G. Return of Products. Products are returnable only as provided in the applicable manufacturer ’s warranty for such Products. If Products are not returnable under the applicable manufacturer’s warranty, the Products shall be deemed non-returnable and the purchase price of such Products shall be non-refundable. If the Products are returnable under the applicable manufacturer’s warranty, a return authorization must be obtained by the Applicant and provided to Ice Services LLC prior to the return of any of such Products to Ice Services LLC. In the sole discretion of Ice Services LLC, either the Products returned by Applicant will be repaired and returned to Applicant or the purchase price of such Products will be credited to Applicant ’s account with Ice Services LLC. Applicant must pay all transportation charges relating to the returned Products. Any returned Products may be subject to a minimum twenty percent (20%) restocking charge. All returned Products must be returned in the original container with packaging and Applicant must provide proof of purchase.
H. All product pricing provided to Purchaser are exclusive of all delivery charges and all federal, state and /or local excise, sales, use, or property taxes or other assessments on the products. Purchaser shall be responsible for and shall pay all such delivery charges, taxes and assessments imposed upon the sale, purchase, possession or use of the products, all of which are Purchaser ’s exclusive responsibility. In the event Purchaser claims exemption from any such taxes and/or assessments, Purchaser shall indemnify Ice Services LLC and hold Ice Services LLC harmless from any subsequent levy from a taxing authority for such taxes and/or assessments, including, but not limited to interest, penalties and late charges.
I. Ice Services LLC’s ability to sell any products to Purchaser is subject to, among other things, the availability of those products from Ice Services LLC ’s vendors. Purchaser agrees that all products that it purchases from Ice Services LLC will be resold only within, and may not be transhipped, sold or otherwise transferred out of, the territory that is the smaller of United States of America or the territory for which Purchaser is authorized to offer the Carrier ’s services, and will not be transshipped out of the Area, and that Purchaser will not alter or remove any Ice Services LLC or any Carrier or manufacturer logos or trademarks that may appear on any products.
J. Purchaser shall, at its own expense, operate in full compliance with all local, State and Federal laws, and the rules, orders, decrees and regulations of the public utilities commission, the Federal Communications Commission and all other applicable authorities, and maintain in force all licenses and permits required for its performance under these Terms. Purchaser shall be exclusively responsible for the assessment, collection and payment of all applicable sales and other taxes on equipment and other items sold and/or billed by Purchaser.
K. All orders for Products under this Agreement are subject to Ice Services LLC’s approval of Applicant’s credit. A purchase order is required for all sales of Products under this Agreement.
II. REPRESENTATION: LIABILITY LIMITATIONS; WARRANTY.
A. Purchaser hereby certifies that the information furnished herein and in any other document furnished to Ice Services LLC is true and correct and that that information is being furnished to Ice Services LLC for the purpose of, among other things, inducing Ice Services LLC to extend credit to Purchaser, and understands that Ice Services LLC intends to rely upon such information as correct.
B. Ice Services LLC shall not be responsible or liable, directly or indirectly, for direct and /or consequential damages to Purchaser, to any of its customers that arrange for service through, or purchase products from, Purchaser as a result of the failure of any product that Ice Services LLC provides or sells to Purchaser. No action shall be brought for any breach of these Terms more than one (1) year after the accrual of such action.
C. ICE SERVICES LLC DOES NOT WARRANT THE DESIGN, MATERIAL OR WORKMANSHIP OF ANY PRODUCTS THAT IT PROVIDES TO PURCHASER, OTHERTHAN THE WARRANTIES, IF ANY, THAT THE CARRIERS OR MANUFACTURERS OF THOSE PRODUCTS EXTEND TO ICE SERVICES LLC. ICE SERVICES LLC MAKES NO WARRANTIES, EITHER, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS THAT IT SELLS TO PURCHASER AND ICE SERVICES LLC SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. THE ONLY WARRANTY TO PURCHASER OR TO END-USERS REGARDING ANY AND ALL PRODUCTS, SOLD, WHETHER EXPRESS OR IMPLIED, UNDER THESE TERMS, ARE ONLY THOSE SPECIFICALLY SET OUT IN THE WRITTEN WARRANTY OF THE PRODUCT MANUFACTURER SUPPLIED WITH EACH PRODUCT. THESE WARRANTIES ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PURCHASER’S AND END-USERS’ SOLE AND EXCLUSIVE REMEDY FROM ICE SERVICES LLC FOR BREACH OF ANY EXPRESS OR
IMPLIED WARRANTY SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF PRODUCT IN ACCORDANCE WITH THE WARRANTY ADJUSTMENT POLICIES OF CARRIER OR PRODUCT MANUFACTURER AND, IN NO EVENT, WILL MANUFACTURER OR ICE SERVICES LLC BE LIABLE FOR DAMAGES IN EXCESS OF THE
VALUE OF THE PRODUCTS; NOR SHALL ICE SERVICES LLC BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OF ANY KIND, EXTRAORDINARY LABOR EXPENSES, OR LOSS OF USE OF THE PRODUCTS. In the event that service of product is necessary because of the failure by Purchaser, or its agents, customers or contractors, to properly assemble or install the specific product, or to properly perform the pre-delivery and/or after-delivery service procedures established by the manufacturer, or because of the incorporation of any modification, accessory or attachment not specifically approved by Ice Services LLC in writing to the Purchaser or any other person, then Ice Services LLC shall be relieved of any and all warranty liability, including but not limited to, that associated with the part installed or for the labor provided. Page | 6 .
III. SECURITY AGREEMENT:
For and in consideration of the extension of credit from Ice Services LLC to Purchaser, Purchaser grants Ice Services LLC, to secure payment of all amounts owing from Purchaser to Ice Services LLC pursuant to such extension of credit, security title and a first -priority purchase money security interest in and to the following described property, wherever located, whether now existing or hereafter acquired: ( 1) all inventory and equipment delivered to Purchaser by, or on behalf of, Ice Services LLC as more particularly described in a Ice Services LLC invoice and /or packing slip accompanying the same; (2) all rights of Purchaser to payment for such inventory and equipment sold, leased or otherwise transferred; (3) all additions, improvements, betterments, replacements, and substitutions to or for such inventory or equipment, and (4) products and proceeds of all the foregoing, including, without limitation, insurance proceeds and commissions earned due to the activation of such inventory or equipment on a wireless network . Purchaser irrevocably designates and appoints Ice Services LLC as its true and lawful attorney -in-fact for the purpose of executing and filing all documents on behalf of Purchaser to perfect Ice Services LLC’s security interest granted hereby.
IV. GENERAL PROVISIONS:
Purchaser represents and warrants that the execution, delivery and performance of these Terms and the application have been duly authorized, that such party and the person executing these Terms and the application on behalf of Purchaser has or have full power, right and authority to execute, deliver, perform and bind Purchaser to these Terms and the application, and that such execution, delivery and performance do not conflict with, and will not result in the breach of, any term, condition or provision of any other agreement, instrument, order, judgment or decree. These Terms are entered into for the exclusive benefit of Purchaser, and Ice Services LLC and its affiliates, and no other person or entity, shall have any rights under, or ability to enforce, any provision of these Terms. All current and future Purchaser locations are governed by these Terms. Except to the extent governed by United States law that preempts state law, these Terms shall be governed under the laws of the State of California, without regard to the choice of law rules thereof. Any provision of these Terms that, by its sense and context, is intended to survive the termination of these Terms, shall so survive these Terms. Further, except to the extent expressly prohibited by applicable law, the undersigned also hereby designates the court nearest to Commerce, California as the venue to resolve any action that may be brought in connection with the Confidential Credit Application or any other agreement or arrangement between Applicant and Ice Services LLC. The undersigned representative of Purchaser personally irrevocably guarantees all obligations of Purchaser, regardless of its form, under these Terms. In the event that Ice Services LLC brings legal action to enforce the terms hereof, Ice Services LLC shall be entitled to recover its costs and expenses, including, without limitation, reasonable attorney’s fees of not less than 25% of amount owed, and the fees of any collection agency and court costs, incurred by Ice Services LLC in connections with such recovery and in otherwise exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions or provisions hereunder. In addition to the foregoing:
A. No modification hereof shall be binding upon Ice Services LLC or Purchaser, unless the modification is in writing and signed by a duly authorized representative of each of them.
B. The failure of Ice Services LLC to insist, in any one or 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.
C. If any provision of these Terms is unenforceable, such unenforceability shall not affect the remainder of these Terms unless a failure of consideration would thereby result.
D. These Terms shall be binding upon and, except as otherwise provided herein, shall inure to the benefit of the parties
ADDITIONAL TERMS FOR CREDIT CARD TRANSACTIONS:
For your convenience, Ice Mobility now accepts Corporate American Express, MasterCard and Visa for sales shipped from our Lincolnshire, IL facility. There will be a 2.75% Convenience Fee charged on all credit card transactions. Credit card payments only can be made at the time of original purchase, and cannot be used to pay credit line invoices that become due at a future date or for purchases from our Los Angeles facility.
By agreeing to these terms and by clicking submit on the payment form you authorize Ice Services LLC, dba Ice Mobility, to charge the user's Corporate American Express, MasterCard or Visa credit card for the payment of products and services on the date of purchase only. The undersigned fully understands and agrees to all terms and conditions included in this Authorization, including a 2.75% Convenience Fee charged for all invoices paid by credit card.
