Application to Online Sales; Orders
These Terms of Sale apply to your purchase from Mobile Mark, Inc., an Illinois corporation (“Mobile Mark”) of goods “Goods”) offered for sale by Mobile Mark on its website, which is located at www.MobileMarkAntennas.com or www.TheAntennaStore.com (the “Website”). Words like (a) “we” or “us,” mean Mobile Mark and its subsidiaries and affiliates; and (b) words like “you,” “your,” and “yours,” mean the person or legal entity accessing the Website and placing an order (“Order”) for goods on our Website.
Exclusive Terms of Sale
Mobile Mark hereby acknowledges receipt of your Order. These Terms of Sale (which may also be attached to, contained in or otherwise referenced in Mobile Mark’s sales quotation, invoice or other correspondence from Mobile Mark) will constitute the entire agreement by and between you and Mobile Mark regarding your purchase of Goods, and any additional or contrary provisions attached to, contained in or otherwise referenced in any other document or information provided with your Order or otherwise provided to us will not be part of the agreement between you and us. These Terms of Sale may be modified only by a writing signed by Mobile Mark. These Terms of Sale are for the benefit of Mobile Mark and you and not for the benefit of any third party.
Cancellation of Orders
You may cancel an Order within twenty-four (24) hours of placing it without incurring any costs associated with it. To cancel an order, send an email to info@mobilemark.com and include the order number sent to you in the order confirmation email. After that twenty-four (24) hour period but prior to shipment, (i) an Order may neither be canceled nor the delivery deferred unless you assume immediate liability and make payment to Mobile Mark for all work completed to date at the unit sales price, plus work in process on the basis of the percentage of completion thereof times the unit sales price, plus raw material, tooling, engineering and other cancellation charges incurred on the basis of cost to Mobile Mark, plus handling and overhead charges; and (ii) all cancellation charges shall be determined by Mobile Mark at the time of cancellation or deferment and notice thereof shall be provided to you. After shipment by Mobile Mark, an Order is non-cancellable and non-returnable unless the Goods are non-conforming.
Terms of Payment
Orders may be paid for with a credit card at the time of purchase or, with prior approval, on an open account basis. Credit card options include VISA, MasterCard, or American Express. The payment information you provide to process your order is transmitted to our credit card gateway (authrorize.net) securely via EV SSL. For your safety and protection, your credit card information is not stored on our servers. If you select the option to have your credit card saved for future Orders, authorize.net keeps this information encrypted and secure on your behalf. For each open-account Order, the Order may be invoiced once terms have been set up with Mobile Mark, and Mobile Mark will invoice you for Goods upon shipment, and you will pay the invoice within thirty (30) days after the date of the invoice. To set up Net 30 day terms, you must complete this Credit Application. Invoiced amounts not paid in accordance with these terms will bear interest at a rate equal to the lesser of (i) one and one-half percent (1.50%) per month, or (ii) the highest rate allowed under applicable law, and you will be liable for all reasonable costs and expenses incurred by Mobile Mark and its agents in connection with all attempts to collect, including, without limitation, reasonable attorneys’ fees, collection fees, interest and court, and arbitration costs. In addition, if you fail to pay any invoiced amount in accordance with these payment terms, Mobile Mark may, in its sole and absolute discretion and without prejudice to any of its other remedies, suspend further production of Goods and deliveries to you, and, if at any time Mobile Mark determines in its sole and absolute discretion that your financial ability is or becomes inadequate to support the shipment of Goods on an open account basis, Mobile Mark reserves the right to revert to credit card payment.
Credit card options include VISA, MasterCard, or American Express. The payment information you provide to process your order is transmitted to our credit card gateway (authrorize.net) securely via EV SSL. For your safety and protection, your credit card information is not stored on our servers. If you select the option to have your credit card saved for future orders, authorize.net keeps this information encrypted and secure on your behalf.
Taxes
You will be required to pay any tax, import or export duty, or other governmental charges upon the production, sale, shipment, or use of the Goods (collectively, “Taxes”), including any such Taxes that Mobile Mark is required to remit or to collect from you unless you furnish Mobile Mark with an exemption certificate acceptable to the applicable taxing authority. In addition, you are responsible for all reasonable costs and expenses incurred by Mobile Mark and its agents in connection with all attempts to collect any such Taxes from you, including, without limitation, reasonable attorneys’ fees, collection fees, interest, and court, and arbitration costs.
Property and Intellectual Property Rights
Any and all tools, dies, patterns, molds, and things used by Mobile Markin manufacturing the Goods are the sole and exclusive property of Mobile Mark. In addition, you will obtain no rights whatsoever in any copyright, patent, trademark, trade secret, mask work, or other intellectual property rights pertaining to the Goods.
Freight
Terms are Ex Works (Incoterms 2010) Mobile Mark’s plant. Title to Goods passes to you, and Mobile Mark’s liability with respect to the Goods ceases, upon making delivery of the Goods to the carrier at Mobile Mark’s plant. Mobile Mark will ship Goods in a reasonable method in suitable packages, the nature of which will be determined by Mobile Mark, except where otherwise expressly agreed upon in writing by you. The full cost of shipping the Goods will be added to the invoice and paid by you or Goods will be shipped freight collect.
Delivery
The Standard lead time for your Order is six to eight (6-8) weeks; however, this standard lead time may vary based on the size and complexity of your Order and the conditions in place when you place your order. Acceptance by Mobile Mark of an Order with a requested or required delivery date, or any estimate by Mobile Mark of the date delivery of Goods will be made, will be made by Mobile Mark in good faith, but does not represent a guarantee that delivery will occur on that requested, required or estimated delivery date. Accordingly, under no circumstances will Mobile Mark be liable for any damages, direct or consequential, arising out of any delayed delivery of Goods. Mobile Mark may make deliveries in installments, and each installment may be separately invoiced and shall be paid by you as billed without regard to subsequent deliveries. Any delay in delivery of any installment or failure to ship any installment will not relieve you of your obligation to accept remaining installments, unless otherwise expressly agreed to in writing by us.
Excuse of Performance
We will not be liable to you for any delay or failure to perform our obligations, in whole or in part, due, directly or indirectly, to any circumstance beyond our control, including, without limitation, war, terrorism, riot, flood, an act of God, shortage of transportation, blockade, embargo, court order, governmental action, strike or other labor trouble, fire, damage to or destruction in whole or in part of Goods or our plant or inability to obtain material, equipment or transportation (any such circumstance, a “Force Majeure Event”). If shipment of your order is delayed by more than six (6) months because of a Force Majeure Event, either of us may cancel that shipment and the balance, if any, of the Order, and, in the event of any such cancellation, you shall reimburse Mobile Mark for costs incurred to date in accordance with Section 3 hereof and, upon such reimbursement by you to Mobile Mark, neither party will be liable to the other for any loss or damage, direct or consequential, from such cancellation. If for any reason (due to Force Majeure or otherwise),we are unable to supply the entire demand for the Goods in any Order for any reason, we reserve the right to allocate our available supply among any or all orders taken, including, without limitation, orders taken from different customers, all on such basis as we may deem fair and practical, without liability to you resulting therefrom.
Acceptance of Goods; Returns
You must inspect the Goods immediately upon receipt and give written notice to us of any claim that the Goods supplied are nonconforming within thirty (30) days of your receipt of such Goods. We will thereupon be afforded a prompt and reasonable opportunity to inspect the Goods at a location specified by us. If you fail to give such notice within thirty (30) days of receipt or fail to provide such prompt and reasonable opportunity to inspect, the Goods will be deemed to be accepted and you will be deemed to waive any right you may have to revoke or refuse acceptance of the Goods or refuse to make payment therefor. You must receive Mobile Mark’s written authorization before returning any Goods. If Goods are returned without such written authorization, they may be refused by us. If we determine in our reasonable discretion that Goods do not comply with the Goods Warranty (as defined below) or the Order quantity, your exclusive remedy against Mobile Mark, if for (a) shortage, will be to require Mobile Mark to make up the shortage within ninety (90) days of our receipt of the notice; or (b) Goods that fail to comply with the Goods Warranty (as defined below), will be to return the Goods to Mobile Mark, at our expense, by a reasonable method of shipment, within thirty (30) days after receiving Mobile Mark’s written authorization, whereupon we at our election shall repair or replace the same or refund the purchase price thereof. The aforesaid obligation of Mobile Mark to repair or replace Goods that fail to comply with the Goods Warranty, refund the purchase price, or make up any shortage within ninety (90) days will be (i) the limit of our liability; and (ii) your sole and exclusive remedy for Goods that fail to comply with the Goods Warranty or any shortage.
Goods Warranty
Mobile Mark warrants to you that for a period of three (3) years from the date of shipment the Goods will be free from defects of material and workmanship and will be in accordance with Mobile Mark’s specifications (the “Goods Warranty”). We will hold you harmless against any rightful claim of any third person that the Goods infringe any U.S. patent; provided, however, to the extent that infringement arises where Goods are used or combined by you or a third party with other things not furnished hereunder, then we will have no such indemnification obligation, and you will hold us harmless against any such infringement claim; provided further that the party seeking to be held harmless notifies the other party and gives it the right to defend such claim. This Goods Warranty shall not apply to damage to goods that results from power surges, fire, unusual mechanical, physical, or electrical stress, or any unauthorized disassembly, repair, modification, severe weather conditions, or acts of nature, including but not limited to lightning or floods. This Goods Warranty shall not apply to damage to goods that results from power surges, fire, unusual mechanical, physical, or electrical stress, or any unauthorized disassembly, repair, modification, severe weather conditions, or acts of nature, including but not limited to lightning or floods. IT IS EXPRESSLY AGREED THAT THE FOREGOING WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES AND LIABILITIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. IN ADDITION, IN NO EVENT WILL THE LIABILITY OF MOBILE MARK UNDER ANY ORDER EXCEED THE PURCHASE PRICE OF THE GOODS PURCHASED ON THAT ORDER, AND FURTHERMORE, UNDER NO CIRCUMSTANCES WILL MOBILE MARK BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, OR CONTINGENT DAMAGE OR EXPENSE ARISING DIRECTLY OR INDIRECTLY FROM ANY NONCONFORMING GOODS OR FROM THE USE THEREOF (INCLUDING BUT NOT LIMITED TO LOST PROFITS), NOR IS ANY OTHER PERSON AUTHORIZED TO ASSUME FOR MOBILE MARK ANY SUCH LIABILITY.
Confidentiality
You are required to keep in confidence and prevent the disclosure to any person all information and data disclosed to you by Mobile Mark that is marked “confidential” or that by its nature ought to be considered confidential, including, but not limited to, quotes, business plans, technological techniques, prints, inventions, and research and development. Notwithstanding the foregoing, you will not be liable for disclosure of any confidential information if it: (i) is or becomes readily ascertainable by the public by proper means without breach of any obligation of confidentiality owed to Mobile Mark; (ii) is disclosed with the prior written approval of Mobile Mark; (iii) becomes known to you from a source other than Mobile Mark without a breach of any obligation of confidentiality owed to us; or (iv) is required to be disclosed by you pursuant to operation of law or authority of any regulatory agency.
Firmware License
You may use such firmware as is installed on the Goods solely for your own use and operation of the associated Goods. You may not (i) copy any firmware;(ii) decompile, disassemble, decrypt, or reverse engineer the firmware or attempt to derive the source code for any part of the firmware; (iii) encumber any right in the firmware in favor of a third party, whether by agreement, operation of law, or otherwise; (iv) remove from the firmware or associated documentation any product identification or proprietary rights notices; (v) sell, lease, lend or sublicense the firmware or the documentation to any third party; (vi) use the firmware for timesharing or service bureau purposes; (vii) modify or create derivative works of the firmware (except that code written to published APIs for the firmware will not be deemed a derivative work), or (viii) publish or disclose to any third party the results of any benchmark tests or other evaluation run on the firmware without the prior written consent of Mobile Mark.
No Implied Waiver
The failure of either party at any time to require performance by the other party of any provision of these Terms of Sale will in no way affect the right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision of these Terms of Sale constitute a waiver of any succeeding breach of the same or any other provision.
Assignment and Delegations
You may not assign any rights or delegate any obligations under the Order without the prior written consent of Mobile Mark, and any such consent will not release you from any of your obligations under the Order. Mobile Mark may subcontract its obligations under any Order.
Governing Law; Notices; Arbitration
These Terms of Sale will be governed by the Uniform Commercial Code of the State of Illinois without regard to choice of law rules, or to the Convention on Contracts for the International Sale of Goods. Any notice required to be sent under these Terms of Sale will be sufficiently given if sent by email to you at the email address in your registration on the Website. Any dispute shall be resolved exclusively, finally, and conclusively by binding arbitration conducted in Cook County, Illinois, in accordance with the commercial rules of the American Arbitration Association. Any action arising under any agreement of the parties must be commenced within one (1) year after such cause of action accrues. In any such case, (a) EACH OF YOU AND MOBILE MARK HEREBY ACKNOWLEDGE THAT THE RIGHT TO A TRIAL BY JURY IS A CONSTITUTIONAL RIGHT, BUT THAT RIGHT MAY BE WAIVED AND (b) EACH OF YOU AND MOBILE MARK HEREBY SO WAIVE THE RIGHT TO A JURY TRIAL IN ANY SUCH CASE.