View the Credit Application Agreement

1. Terms of Payment: Unless otherwise agreed in writing, the Buyer’s terms of payment is C.O.D. (Cash on Delivery). However, if credit is extended and if at any time Buyer’s financial responsibility shall become impaired or unsatisfactory to Seller, advance cash payment or satisfactory security shall be made or given by Buyer on demand by Seller, which may withhold further deliveries until such payments or security is received, or any failure to receive same, Seller may at its option terminate this Agreement. Discounts for cash, if any, shall not be allowed from or applied to or computed upon taxes or freight. In the event that credit terms are so extended and unless otherwise stated herein, the payment shall be due in full for the invoice amount of the Goods, including shipping and delivery costs and applicable sales, use, and excise tax, no later than fifteen (15) days after the date of the invoice therefor.
2. Credit Terms: (a) In the event that Buyer requests Seller to extend it credit terms in connection with Buyer’s purchase of Goods, Seller shall evaluate Buyer’s credit information by the Buyer as provided hereinbelow and other factors, including, but not limited to, Buyer’s past payment history with Seller, to determine whether to extend payment terms in connection therewith. Buyer understands and agrees that Seller will retain complete sole and absolute discretion to determine whether to extend payment terms to Buyer. Buyer hereby consents to any credit check undertaken by Seller or its authorized agents and representatives, including, but not limited to, the exchange of credit information with credit reporting agencies, as part of its evaluation of whether to potentially extend credit to Buyer in accordance herewith; and (b)In the event credit is extended, as Seller may determine in its sole discretion, the credit terms may be set forth on an invoice or other writing (the “Invoice”) provided by Seller to Buyer which evidence then terms of sale. Such Invoice which evidences the credit terms shall be deemed to be a part of this Agreement and its terms shall be deemed incorporated herein by this reference. If there is a conflict between this Agreement and the Invoice, the terms and conditions of this Agreement will control.
3. Delivery: Time for shipment and/or delivery, if any, is stated according to Seller’s best expectation, but is neither guaranteed nor a condition of the sale or this Agreement. Any delivery instructions must be given by Buyer prior to acceptance of the quoted price so that Seller has the opportunity to readjust its price. Seller reserves the right to make deliveries in installments. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept and pay for previous and remaining installments.
4. Freight and Risk of Loss: The risk of loss from any casualty to the Goods, regardless of the cause, shall pass on Buyer (a) at point of shipment by Seller, or(b) if the Goods are on will-call, then at the time of receipt of the Goods by Buyer. Seller reserves the right to route the freight. Buyer shall be responsible for all freight, transportation, insurance, shipping, storage, handling, demurrage, or similar charges. Buyer assumes all risk of loss, including but not limited to shortage, delay, or damage in transit. Such risk shall be on Buyer including any Goods thereafter returned to Seller until their receipt by Seller. If the Goods covered by this Agreement are destroyed before the time the risk of loss passes to Buyer, Seller shall be excused from performing its obligations under this Agreement and the Agreement shall be voided. This provision shall apply whether or not the Goods are destroyed through negligence of Seller.
5. Modification and Cancellation of the Agreement: After execution of this Agreement by Seller and Buyer, the Agreement may not be changed or canceled by Buyer in whole or in part except with Seller’s written consent. In case of default by Buyer in the performance of any obligation, term or condition on its part to be performed contained in this Agreement or any other Agreement of Buyer accepted by Seller, or if any bankruptcy, reorganization, receivership or other proceeding for the relief of debtor is filed by or against Buyer, or if any proceeding is commenced for the appointment of a receiver of Buyer or any substantial part of its property, or in case Buyer shall be dissolved or its existence terminated or Buyer shall terminate or suspend the ordinary course of operation of its business, or if Seller reasonably and in good faith deems it prospects for or payments by Buyer impaired, Seller may defer any further delivery or deliveries for such time as Seller may deem desirable or Seller, at Seller’s election, may forthwith cancel this Agreement or any part hereof. If Buyer violates any federal, state or local law, ordinance or regulation that governs the manufacture, sale, handling, and disposal of any products covered by this Agreement, or if Buyer is officially charged with such a violation to the detriment or damages of Seller, Seller in its sole discretion may immediately terminate this contact and any other existing agreements with Buyer and may refuse to make any further deliveries.
6. Modification and Cancellation of Orders for Purchase of Goods: The Buyer may not modify or cancel any orders of purchase of goods from the Seller without written authorization from Seller. In the event Seller authorizes a cancellation, Buyer shall be liable for liquidated damages equal to fifteen percent (15%) of the purchase price of such Goods, plus shipping and delivery charges incurred, if any; provided, however, that in no event shall any amount charged hereinunder exceed the maximum rate by law. The parties hereto agree that such damages are reasonable given, among other matters, the costs incurred by Seller to obtain and restock the Goods for the Buyer. Buyer hereby waives the right to claim that such damages are unfair or unreasonable.
7. Non-delivery by Seller: This Agreement is subject to, and Seller shall not be responsible or liable in any respect for, any delay and/or nondelivery directly or indirectly resulting from and/or contributed to by any foreign or domestic laws or regulations, embargos, seizure, act of God, civil or military authority, compliance with priority orders of preference ratings issued by any governmental authority, insurrection, war, or the adoption or enactment of any law, ordinance, regulation, ruling or order directly or indirectly rendering substantially impossible or impractical production or delivery hereunder, lack of the usual means of transportation, fires, floods, unusually sever weather, explosion, epidemics, quarantine, restrictions, strikes, inability to obtain necessary labor, materials, or manufacturing facilities or other accident, contingency or condition beyond the Seller’s control, including such delay and/or non-delivery to the Seller by the manufacturer resulting from any such event, accident or contingency or condition. In the event that any deliveries hereinunder is suspended or delayed by reasons of any one or more of the aforesaid occurrences or contingencies, any and all deliveries so suspended or delays shall, at Seller’s option, be made after such event or condition has ceased to exist. In the event Seller shall not choose to resume deliveries after such event or condition has ceased to exist, Buyer shall be entitled to a refund or any monies theretofore paid to Seller on account of Goods not actually delivered, and upon such refund, there shall be no other or further liability of any kind on the part of the Seller to the Buyer.
8. Rejection of Goods by Buyer: (a) Buyer may not return Goods unless written authorization is received from Seller. In the event that Seller authorizes a return, Buyer shall be liable for liquidated damages equal to fifteen percent (15%) of the purchase price of such Goods, plus shipping and delivery charges incurred, if any; provided, however, that in no event shall any amount charged hereinunder exceed the maximum rate by law, if any. The parties hereto agree that such damages are reasonable given, among other matters, the costs incurred by Seller to obtain and restock the Goods for the Buyer. Buyer hereby waives the right to claim that such damages are unfair or unreasonable; (b) Any returns accepted will be for credit only, Seller retains the sole discretion to determine the value at which the returned Goods will be credited. Seller reserves the right to dispose of any unauthorized returns of materials without affording credit. Any oral instructions must be confirmed in writing by Seller to be valid; (c) If Buyer rejects any shipment of Goods due to material defect, and elects to accept only a part of that shipment, it is agreed that the portion of Goods rejected shall be returned to Seller within three (3) business days, and the return shipment shall be at the expense and risk of Buyer. Seller may, at its option, have an agent inspect such Goods for nonconformity; otherwise, such inspection will be made on return to Seller.
9. Warehousing: (a) Buyer shall be responsible for all costs, charges, fees or other expenses incurred by Seller for the warehousing or storage of the Goods sold hereunder in the event the Buyer is unwilling to accept delivery thereof within ten (10) days from the date that Seller is able to deliver said Goods, or any installments thereof; (b) Buyer hereby agrees to immediately notify Seller of any delays in Buyer’s ability to accept delivery of the Goods sold hereunder. However, said notice of delay in no way shall diminish Buyer’s responsibility to Seller as set forth hereinabove in paragraph 9(a).
10. Buyer’s Duty to Inspect, Notice of Claim to Seller & Actions Against the Seller: Buyer must examine the Goods fully upon receipt and before using, or reselling the same. Within three (3) business days after delivery, Buyer must give written notice to Seller of any claim for damages on account of condition, quality, or grade of the Goods, and Buyer must specify in detail the basis of such claim. The failure of Buyer to comply with these conditions shall constitute irrevocable acceptance of the Goods by Buyer and a release and waiver of all claims. Seller, at its discretion, must be afforded an opportunity to inspect any non-conforming or defective Goods and to cure the same before Seller incurs any liability to Buyer. Any action by Buyer arising out of or in connection with this Agreement must be commenced within nine (9) months from the accrual of the cause of action.
11. Late Payments: All payments, sums, and balances hereunder that are thirty (30) days past due shall bear (1) interest at a rate of twelve percent (12%) per annum until paid, and (2) a late charge equal to ten percent (10%) of the unpaid portion of the invoiced amount; however, that in no event shall any amount charged hereunder exceed the maximum rate permitted by law, if any.
12. LIMITATION OF SELLER’S LIABILITY: Seller’s sole liability to Buyer shall be limited, at Seller’s sole option, to either replacing or repairing any defective Goods or reimbursing Buyer for the original price charged for said Goods. In no event shall Seller’s liability exceed the original price charged for the Goods. SELLER SHALL IN NO EVENT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, LOSS OF PROFITS, LOSS OF BUSINESS, OR SIMILAR DAMAGES TO PERSONS OR PROPERTY EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. REPRESENTATIONS AND WARRANTIES: (a) THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR OTHERWISE WITH RESPECT TO ANY GOODS. SELLER SHALL IN NO EVENT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, LOSS OF PROFITS, LOSS OF BUSINESS, OR SIMILAR DAMAGES TO PERSONS OR PROPERTY EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (b) Seller makes no warranty that the Goods sold under this Agreement are delivered free of rightful claim of any third party by way of infringement. Seller gives no warranty that it has any title whatsoever to the Goods sold under this Agreement or that they are not subject to a security interest, lien, or other encumbrances. If the Goods are reclaimed by a third party as rightful owner or there exists a security interest, lien or other encumbrances on the Goods, Buyer shall not have the right to restitution of the purchase price; (c) Buyer has made an independent investigation of the Goods and has relied solely upon his own investigation with reference thereto and in entering into this agreement, and is completely satisfied therewith; (d) Buyer agrees that no promise, affirmation of fact, sample, or description made or furnished to the Buyer became a part of the basis of the bargain, and descriptions of Goods in this Agreement or otherwise furnished to Buyer are for the sole purpose of identifying the Goods and Seller doe not warrant that the Goods conform to any models or samples shown to Buyer and Buyer acknowledges that no warranty has arisen through trade, custom, or course of dealing by Seller; and (e) If the Goods do not operate as warranted by the manufacturer or they are unsatisfactory for any other reason, a claim should be submitted to the manufacturer, not the Seller. Seller is not responsible for the performance, maintenance or the servicing of the Goods.
14. Taxes, and Insurance: Buyer shall pay to Seller, together with the balance of the purchase price of Goods hereinabove set forth, all U.S., state, municipal, and domestic government taxes now and hereinafter imposed upon the sale or use of the Goods covered by this Agreement which is obligated to pay. During the term of this Agreement and until full payment for all the Goods has been paid to Seller, Buyer shall keep the Goods insured against loss by fire, with the insurance proceeds, if any, payable to Seller as its interest may appear. The insurance shall be in the sum of not less than the purchase price. Buyer shall pay all premiums due or to become due on the insurance an shall keep ti in full force and effect. If Buyer fails to obtain insurance or fails to keep the insurance in full force and effect, Seller may take the insurance and pay the premiums, and the said amount so paid shall be repaid to Seller by Buyer, or Seller may, at its option, terminate this Agreement by written notice.
15. Security Interest: The Buyer agrees that until the full purchase price has been paid, title to the Goods hereinunder (the “Collateral”) shall remain vested in Seller. If not paid for within the time period stipulated in this contract, Seller, at its option, shall have the right to declare all amounts due and payable immediately, take possession of such personal property, for which purpose the Buyer shall allow, and hereby authorizes the Seller access to private premises without the breach of peace. Seller shall also have an interest in the proceeds of the Collateral. Seller shall be deemed to have all of the rights of a secured party as provided under uniform commercial code as in effect in the state of California, as well as other applicable law. Seller may execute a UCC-1 financing statement (the “Financing Statement”) which reflects Seller’s security interest in the Collateral and the proceeds thereof, which financing statement may be filed by the Seller with the California secretary of state and/or appropriate government offices. Buyer hereby grants Seller a limited power of attorney to execute and file a Financing Statement on its behalf which references the Collateral and the proceeds thereof. The Seller shall be entitled to reasonable attorney’s fees and court costs in enforcing this provision. The Buyer waives notice of default and demand for possession of said personal property.
16. Entire Agreement: This Agreement, along with the Credit Application and the Personal Guaranty, if any, set forth the entire agreement between the parties concerning the subject matter hereof, and no term, condition, promise, representation, or warranty of any kind heretofore or hereafter made by Seller or any one employee, salesperson, sales agent, or other person representing the Seller, except those expressly set forth herein, shall be binding on Seller unless the same is contained herein. Oral statements and understandings are not valid or binding, and neither this Agreement nor any order shall be changed or modified except by a writing signed by both parties. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any terms used in this Agreement.
17. Authorization: Each party represents and warrants that the execution, delivery, and performance of this Agreement have been duly authorized, that such party has full right, power, and authority to execute, deliver, and perform this Agreement, and that such execution, delivery and performance do not and will not conflict with or result in a breach of the terms, conditions, provisions of any agreement, instrument, order, judgment or decree to which party is a party or by which it is bound.
18. Construction: This Agreement and all of the rights, obligations and liability of the parties thereto shall be governed by the laws of the State of California in all respects. The terms, provisions, and conditions of this Agreement shall survive delivery of the Agreement.
19. Jurisdiction/venue: Parties hereto consent to the jurisdiction and venue of the Superior Court of the State of California, County of Los Angeles, Central District. Parties hereto also agree that (1) the Agreement is made and entered into, (2) the obligation is incurred and to be performed, and (3) the Buyer is to make payments in the city of Los Angeles, County of Los Angeles. Buyer hereby submits to the above jurisdiction and venue for any purposes dealing with this Agreement or any subsequent agreement between the parties.
20. Attorney’s Fees: Buyer shall pay all costs, expenses and disbursements, including reasonable attorney’s fees, incurred by the Seller in taking and reselling the Goods or in collecting any sum which may be due and owing to the Seller from the Buyer hereinunder, or in the enforcement of any other term or provision required to be performed by the Buyer hereunder whether or not suit be instituted in respect thereto.
21. Waivers & Remedies: The waiver of either party or any breach of violation or default by other party under any provision of this Agreement will not operate as waiver of such provision or of any subsequent breach of violation thereof or default hereinunder. The remedies reserved in this Agreement shall be cumulative and in addition to any other remedies provided in law or equity.
22. Severability: If any provision of this Agreement should be held invalid or unenforceable for any reason whatsoever or to violate any law of the United States or California, this Agreement is be considered severable as such provision.
23. Headings: The titles appearing at the beginning of the paragraphs of this Agreement are for convenience only and shall not affect the interpretation of the Agreement.
24. Assignment by Seller: This Agreement may be assigned by Seller to the successor of Seller of any other firm or entity which assumes the obligations of Seller.
25. Assignment by Buyer: This Agreement has been entered into by Seller in reliance upon the financial, business, and personal reputation of Buyer and its management. Therefore, this Agreement may not be transferred or assigned or encumbered by Buyer without Seller’s prior written consent. Any purported transfer, assignment, or encumbrance without such written consent shall be void and of no force or effect. If Buyer is a corporation or a partnership, the sale, transfer or assignment of fifty percent (50%) or more of its capital stock, partnership interest, or voting rights shall be deemed an assignment of this Agreement.
26. Binding Nature of Agreement: Subject to the restrictions against assignment herein provided, this Agreement shall bind and inure to the benefit of the successors and assigns of each of the parties hereto.
27. Agreement Liability: All persons executing this Agreement as Buyer are principals and jointly and severally bound each for the whole.
28. Indemnification: Buyer shall indemnify and hold harmless Seller, its affiliates, their respective directors, officers, employees, agents, subsidiaries, subcontractors, and assignees from and against all claims, damages, judgments, attorney’s fees, costs and liabilities resulting from (1) the acts or omissions of Buyer, (2) the failure by Buyer to perform its obligations hereunder, (3) or any claims of infringement of any United States patent, trademark, or logo in connection with the Goods sold to Buyer.
29. Survival: The termination of this Agreement shall relieve the parties hereto of any obligations incurred hereunder up to and including the date of termination. The covenants and other provisions herein which, by their terms or nature, extend beyond the termination of this Agreement, shall survive such termination.
30. Personal Guaranty: The obligations of Buyer hereunder shall be subject to a personal guaranty, if any, on the reverse side of this Credit Application.
31. Authority: Each party to this Agreement represents that all authorizations, consents and approvals that are conditions precedent to the authority of such party to execute this Agreement have been obtained.
32. Credit Information: Buyer hereby represents and warrants to Seller that it has completed the credit information herein below and holds the below information to be correct and accurate. Buyer authorizes Car Phone Factory, Inc. or its agents to verify all information contained herein, by any means available, including running a credit report.
33. Resale Certificate: Buyer hereby represents and warrants to Seller that it has obtained a Resale Certificate with its State Sales Tax Permit Number as provided hereinbelow. Buyer shall furnish a copy of such Resale Certificate coincident with its signature and delivery of this Agreement to Seller.