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Acceptance: eInflatables accepts and confirms Buyer's purchase order
for the items, goods and products described on the Sales Invoice and
Confirmation of Order. Buyer agrees to the terms and conditions of sale
set forth below. No different or additional terms are acceptable by
eInflatables unless agreed in writing and signed by eInflatables. These
terms and conditions are exclusive and in lieu of all other terms and
conditions appearing on Buyer's purchase order or elsewhere and apply to
all quotations made and orders accepted by eInflatables. Unless
specifically stated to the contrary on the confirmation of order,
eInflatables is not responsible for typographical or clerical errors made
in any quotations, orders or publications.
Payment: Payment shall be made as follows: Buyer must make a 50%
deposit on the price of each custom made item or each item not currently
in stock. The balance is due prior to the date of shipping the item, which
date will be provided to buyer by eInflatables as soon as possible. For
orders of equipment and items in stock, payment shall accompany buyer's
return of the confirmation of order. All funds for payment shall be in
U.S. dollars in the form of cash, cashier's check, money order, wire
transfer, or credit card. Deposits, but not final payment, may be made in
the form of buyer's check, payable to eInflatables. Shipments will not be
made C.O.D. eInflatables may refuse to manufacture any item (unless
payment in full is first received) whenever, in the sole discretion of
eInflatables there is doubt as to Buyer's ability to pay.
Shipment: eInflatables shall ship the goods to the site specified on
the Confirmation of Order or, if the Buyer chooses, Buyer shall pick up
the goods at eInflatables warehouse during normal business hours. If Buyer
picks up goods, Buyer shall inspect goods and sign for receipt of goods in
acceptable condition. If shipped, the goods shall be shipped F.O.B.
carrier at eInflatables factory, in Santa Fe Springs, California. All risk of loss
passes to Buyer when eInflatables delivers the order, or any portion
thereof, to the carrier. If Buyer does not specify a preferred method of
shipment, eInflatables shall exercise sole discretion in selecting a
method of shipment. eInflatables uses the services of major common
carriers and delivery services and for foreign orders, freight forwarders.
All costs and expenses relating to shipment, including insurance, customs
expenses, duties, taxes, etc. shall be the sole responsibility of Buyer.
eInflatables generally will ship freight prepaid, unless buyer requests
other arrangements. Shipments will be insured at buyer's expense unless
otherwise specified, and eInflatables assumes no responsibility for
placing of valuation upon a shipment unless requested to do so by Buyer.
Partial shipments of any order to Buyer may be made by eInflatables in
order to facilitate the earliest possible delivery of the item(s) ordered;
provided, however, partial shipment shall not be made unless eInflatables
has been paid in full for the entire order.
Delivery: The promised delivery date is the estimate possible based on
current and anticipated factory loads, of when the order will be shipped.
eInflatables shall not be liable for damage or for delay in delivery
arising from causes beyond its control and without its fault or negligence
including, but not limited to, destruction or damage to the goods or
eInflatables manufacturing plant, shortage of raw materials, acts of God,
public enemy, act of government, fires, floods, strikes, freight embargoes
and severe weather. If the delay is caused by the delay or default of a
subcontractor of eInflatables and if such delay arises from causes beyond
the control of both eInflatables and the subcontractor, eInflatables shall
not be liable to Buyer for damages.
Inspection: Buyer shall inspect the goods promptly after receipt. Any
claim of shortage, breach of warranty, damage, or defect, which would be
observable upon reasonable inspection of the goods, is waived by Buyer
unless Buyer submits claim in writing to eInflatables within Five (5) days
of receipt of the merchandise. Failure of Buyer to give written notice of
a claim within this inspection time period shall be deemed to be waiver of
a claim for defective products, a waiver of the right to reject the goods,
and conclusive proof that the product(s) were received by Buyer without
defect(s).
DISCLAIMER: Pursuant to provisions of paragraph 5, eInflatables
excludes all other remedies or warranties, express or implied, including
warranties of merchantability and fitness for a particular purpose, and
all warranties arising from the course of dealing or usage and customs of
the trade, whether or not purposes or specifications are described herein.
eInflatables further disclaims any responsibility whatsoever to buyer or
to any other person for injury to person or damage to or loss of property
or value caused by any product which has been subjected to misuse,
negligence, or accident, or misapplied, or modified or repaired by
unauthorized persons, or improperly installed.
LIMITATION OF LIABILITY: Under no circumstances shall eInflatables be
liable for any incidental, remote, speculative, consequential, punitive,
reliance, delay, special damages, losses or expenses arising from this
Confirmation of Order or eInflatables or Buyer's performance or
nonperformance, or any act or omissions of eInflatables or in connection
with the use of or inability to use the goods for any purpose whatsoever.
In the event eInflatables is found liable for damages not withstanding the
limitations and exclusions contained in this section, eInflatables shall not be
responsible for damages to any person or entity, including, but not
limited to buyer and Buyer's customers, for any amount exceeding the
amount paid by Buyer for the products ordered and confirmed by this
confirmation order.
Tolerances: All dimensions stated in the catalog, prices lists, or
elsewhere pertaining to the products sold by eInflatables are approximate
and within industry tolerances.
Limitation of Remedies: Replacement or repair at eInflatables option
shall be the sole remedy of buyer with respect to any defective or non
conforming goods or parts and shall be the exclusive remedy of buyer,
regardless of any remedy otherwise available under applicable law.
eInflatables is not liable for remote, special, speculative, or
consequential damage. eInflatables is not liable for loss of use or
profits under any circumstances.
Modifications: Prices are subject to adjustment if Buyer requests
changes in specifications, quantities, or deliver requirements. All
Paragraphs of this confirmation of Order shall apply to goods to which
such changes apply, and no modification of the terms and conditions here
of shall be binding on eInflatables unless contained in writing signed by
eInflatables and expressly stating both that such terms are being modified
and the nature of such modification. An order cannot be changed within the
two (2) week period prior to the intended shipment date unless
eInflatables and Buyer mutually agree to an appropriate change order fee
and a appropriate new shipment date, if applicable.
Cancellation Policy: Buyer may cancel this order, in whole or in part,
upon both written notice to eInflatables and payment of cancellation
charges, which charges shall be the sum of (1) the price of all goods that
have been delivered and not previously paid for, plus (2) the actual cost
incurred by eInflatables that is properly applied to the goods not
delivered at the time of decrease or cancellation, including, without
limitation, the cost of components and materials purchased for use in
producing such goods, plus (3) the profit, and reasonable overhead that
eInflatables would have made from full performance by Buyer, plus (4) the
costs of engineering, prototypes, testing, tooling, and similar items
produced for Buyer, plus (5) the reasonable costs incurred by eInflatables
in making settlement and effecting collection hereunder. Buyer may require
delivery to it of any material (except tools, molds, dies and any other
equipment) for which payment hereunder is made.
Return Policy: All Sales are final unless otherwise agreed to in
writing. If however, an item is returned for reasons unrelated to a
warranty claim, a restocking fee of 25% of the price of the item(s)
refunded will be paid by Buyer.
Copyrights and Patents: The copyright and patents of the designs, data
sheets, packaging and literature of eInflatables shall remain the property
of eInflatables and no rights or license (except as to the use for which
eInflatables goods are supplied) shall be granted herby whether expressed
or implied. eInflatables makes no warranty that the goods will be
delivered free of the rightful claim of any third party by way of
infringement or the like. Buyer shall notify eInflatables if making,
using, or selling the goods will constitute infringement of a patent or
copyright.
Taxes: All charges are subject to the federal, state and local taxes,
if any, applicable, at the point of delivery. Buyer shall pay such taxes
imposed on this order, and all penalties and interest, if any accrued
therewith.
Insurance: Buyer agrees to carry general liability insurance with
coverage limits of no less than $1,000,000 in connection with Buyer's use
or rental of any goods purchased from eInflatables.
Interpretation: The rights and liabilities arising out of this
contract with eInflatables shall be determined under the Uniform
Commercial Code as enacted in California, without application of choice of
law rules or the United Nations Convention on Contracts for the Sale of
Goods (as to foreign shipments).
Effect of Breach on Risk Loss: Brach of this contract by eInflatables
shall have no effect on the provisions controlling the risk of loss of the
goods, and Section 2-510(1) and 2-510(2) of the Uniform Commercial Code
shall have no effect on this Confirmation of Order.
Use and Indemnification: "Buyer" (person, company or entity purchasing
the inflatable product or device), is solely responsible for the manner of
use of the products and other equipment purchased from eInflatables.
"Buyer" is solely responsible for all signage, labels and warnings to
consumers or other users of the products and equipment, and for any and
all other acts necessary, including user warnings and limitations (e.g.,
weight, height, age, number of participants and medical condition
limitations), to ensure the safety of the users. "Buyer" acknowledges that
they have received, read and fully understand all necessary instructions
for the safe setup and operation of their eInflatables product or device.
"Buyer" agrees to operate their eInflatables product or device according
to the instructions established by eInflatables. "Buyer" agrees to operate
their inflatable product or device according to all state and local
requirements. "Buyer" agrees to train any person(s) operating the
inflatable product or device in the safe operation of the inflatable
product or device including safe handling of emergency situations. "Buyer"
shall use proper stakes, tie-downs, and other applicable devices necessary
to ensure the safety of users and the general public. Buyer agrees to Indemnity, hold harmless, and defend Funtastic Factory, Inc. dba eInflatables and its officers, directors,
shareholders, employees and agents against and in respect of any actions
and all claims, demands, losses, cost, expense, obligations, liabilities,
damages, recoveries and deficiencies, including interest and penalties
that eInflatables shall incur, or suffer, which arise, result from, or
relate to the use of goods and products sold to Buyer and used by Buyer,
Buyer's lessees, customers, and/or any other third parties using the goods
and products, including but not limited to , any other persons injured by
or on account of such goods and products described herein. In the event
eInflatables is required to commence action to enforce this provision,
Buyer shall pay all of eInflatables legal costs and expenses.
Assignment and Delegation: The rights and obligations of the Buyer
under this Confirmation of Order may not be assigned or delegated by Buyer
without the written signed consent of eInflatables.
Integration: There are no representations, warranties or conditions,
expressed or implied, statutory or otherwise except those herein
contained, and no Confirmation of Orders or waivers collateral hereto
shall be binding on either party unless in writing and signed by Buyer and
accepted by eInflatables. This Confirmation of Order contains all of the
promises, warranties, terms and conditions of the Confirmation of Order
between the parties and supersedes any and all oral or implied promises,
undertakings and prior agreements.
Governing Law, jurisdiction and Venue: To the fullest extent permitted
by applicable law, Buyer hereby irrevocably submits to the jurisdiction of
any state or federal court located in the County of Los Angeles, State of
California, USA, over any action, suit or proceeding to enforce or defend
any right under this Confirmation of Order, and Buyer hereby irrevocably
agrees that all claims in respect of any such action or proceeding may be
heard or determined in such state or federal court. To the fullest extent
permitted by applicable law, buyer herby irrevocably waives the defense of
any inconvenient forum to the maintenance of any such action or proceeding
or any other substantive or procedural rights or remedies Buyer may have
with respect to the maintenance of any such action or proceeding in any
such form and Buyer herby agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner provided by
law. Buyer agrees not to institute any legal actions or proceedings
against eInflatables or any affiliate, arising out of or relating to this
Confirmation of order in any court other than as herein above specified.
Attorney's Fee: In the event either party brings an action to
interpret or enforce its rights under this Confirmation of Order, the
prevailing party shall be entitled to reasonable attorney's fees and costs
which may be set by the court in the same action, in addition to any other
relief to which it may be entitled.
Severability: If any of the Terms or Conditions
of this Confirmation of Order are found to be unenforceable, illegal or
unconscionable by a court of competent jurisdiction, the remaining terms
and conditions of this Confirmation of Order shall stay in full force and
effect.
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