Impact Air Bags, LLC

TERMS AND CONDITIONS OF SALE

 

1. ACCEPTANCE: WE ACCEPT AND CONFIRM YOUR PURCHASE ORDER FOR THE ITEMS, GOODS, AND PRODUCTS DESCRIBED HEREIN. YOU AGREE TO THE TERMS AND CONDITIONS OF SALE SET FORTH ON THE FACE AND REVERSE SIDES HEREOF. NO DIFFERENT OR ADDITIONAL TERMS ARE ACCEPTABLE BY IMPACT AIR BAGS, LLC UNLESS AGREED ON IN WRITING AND SIGNED BY IMPACT AIR BAGS, LLC. TO THE EXTENT OF ANY CONFLICT BETWEEN THESE TERMS AND CONDITIONS AND ANY OTHER TERMS AND CONDITIONS APPEARING ON BUYER’S PURCHASE ORDER OR ELSEWHERE, THESE TERMS AND CONDITIONS SHALL SUPERSEDE AND CONTROL. THESE TERMS AND CONDITIONS APPLY TO ALL QUOTATIONS MADE AND ORDERS ACCEPTED BY IMPACT AIR BAGS, LLC UNLESS SPECIFICALLY STATED TO THE CONTRARY ON THE FACE OF ANY CONFIRMATION OF ORDER. IMPACT AIR BAGS, LLC IS NOT RESPONSIBLE FOR TYPOGRAPHICAL OR CLERICAL ERRORS MADE IN ANY QUOTATIONS, ORDERS, OR PUBLICATIONS.

 

2. 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 Impact Air Bags on the reverse side hereof or as soon as possible. For orders of equipment and items in stock, 100% payment shall accompany Buyer’s return of this confirmation of Order. Whether an item ordered is in stock, and the full amount owing at the time of return of this Confirmation of Order, shall appear on the reverse side of these Terms and Conditions. All funds for payment shall be in U.S. dollars in the form of cashier’s check, money order, wire transfer, or credit card. Deposits, but not final payment, may be made in the form of Buyer’s personal check, payable to Impact Air Bags. Shipments will not be made C.O.D. Impact Air Bags may refuse to manufacture any item unless payment in full is first received whenever, in the sole discretion of Impact Air Bags, there is doubt as to Buyer’s ability to pay. Prices as listed exclude taxes.

 

3. Shipment: The goods shall be shipped F.O.B. carrier Impact Air Bag’s factory, Azusa, CA. All risk of loss passes to Buyer when Impact Air Bags delivers the order, or any portion thereof, to the carrier. If Buyer does not specify a preferred method of shipment, Impact Air Bags shall exercise sole discretion in selecting a method of shipment. Impact Air Bags 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. Impact Air Bags generally will ship freight collect, unless Buyer requests other arrangements and prepays Impact Air Bags for all shipping expenses. Shipments will be insured at Buyer’s expense unless otherwise agreed in writing by Impact Air Bags, and Impact Air Bags assumes no responsibility for placing of valuation upon a shipment unless requested to do so by Buyer, at Buyer’s expense. Partial shipments of any order to Buyer may be made by Impact Air Bags in order to facilitate the earliest possible delivery of the item ordered; provided, however, that partial shipment shall not be made unless Impact Air Bags has been paid in full for the entire order. The customer must inspect the package(s) for damage(s) before signing the Bill of Lading. Customer should refuse the shipment if there is damage on the package or should make a note on the Delivery Receipt (Bill of Lading) for further claim evaluation. Any freight claim must be submitted to the freight carrier immediately.

 

4. Delivery: The promised delivery date is the best estimate commercially reasonably possible based on current and anticipated factory loads, of when the order will be shipped. Impact Air Bags shall not be liable for delays in delivery beyond any estimated delivery date under any circumstances, except to the extent any such delay results from Impact Air Bags’ gross negligence or willful misconduct. Without limiting the foregoing, subject to Section 13 hereof, Impact Air Bags shall not be liable for damage or for delay in delivery, whether by Impact Air Bags or a contractor or subcontractor of Impact Air Bags, arising from causes beyond its reasonable control including, but not limited to, Acts of God, public enemy, acts of government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and severe weather that is not reasonably foreseeable.

 

5. Inspection: Buyer shall inspect the product(s) promptly after receipt and shall notify Impact Air Bags in writing, including photos, of any claims, including claims of breach of warranty under Section 13 hereof, within five (5) days after Buyer discovers or should have discovered the facts upon which the claim is based. Failure of Buyer to give written notice / photos of a claim within the inspection time period shall be deemed to be a 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).

 

6. DISCLAIMER: Except as expressly set forth herein, Impact Air Bags EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICES AND IN ALL CASES WITH RESPECT THERETO.

 

7. LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL IMPACT AIR BAGS. LLC. BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, DELAY, OR SPECIAL DAMAGES; LOSSES OR EXPENSES ARISING FROM THESE TERMS AND CONDITIONS; THE CONFIRMATION OF ORDER TO WHICH THESE TERMS AND CONDITIONS RELATE; OR IMPACT AIR BAGS. LLC’S OR BUYER’S PERFORMANCE OR NONPERFORMANCE, OR ANY ACTS OR OMISSIONS OF IMPACT AIR BAGS. LLC, OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE GOODS FOR ANY PURPOSE WHATSOEVER. IN ANY AND ALL EVENTS, IN THE EVENT IMPACT AIR BAGS. LLC. IS FOUND LIABLE FOR DAMAGES NOTWITHSTANDING THE LIMITATIONS AND EXCLUSIONS SET FORTH HEREIN, IMPACT AIR BAGS. LLC. SHALL NOT BE RESPONSIBLE FOR DAMAGES TO ANY PERSON OR ENTITY, INCLUDING BUT NOT LIMITED TO BUYER AND BUYER’S CUSTOMERS, FOR AN AMOUNT EXCEEDING THE AMOUNT PAID BY BUYER FOR THE PRODUCTS ORDERED AND CONFIRMED BY THIS CONFIRMATION ORDER.

 

8. Tolerances: All dimensions stated in the catalogues or elsewhere pertaining to products sold by Impact Air Bags are approximate and within industry tolerances.

 

9. Patents: Impact Air Bags 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 Impact Air Bags if making, using, or selling the goods will constitute infringement of a patent. If Impact Air Bags determines, in its sole discretion, that making, using, or selling the goods would result in the infringement of any patent, Impact Air Bags reserves the right to cease manufacturing the product, without liability to Buyer.

 

10. Modifications: Prices are subject to adjustment if Buyer requests changes in specifications, quantities, or delivery requirements. All paragraphs of these Terms and Conditions and the Confirmation of Order shall apply to goods to which such changes apply, and no modification of the terms and conditions hereof shall be binding on Impact Air Bags unless contained in writing signed by Impact Air Bags 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) weeks prior to the estimated shipment date unless Impact Air Bags and Buyer mutually agree to an appropriate change order fee and appropriate new shipment date, if applicable. Notwithstanding the foregoing, Impact Air Bags has the right, in its exclusive discretion and without notice to Buyer, to change prices of products at any time; provided that any new price shall apply only to future orders made by Buyer and not any order accepted by Impact Air Bags prior to the change.

 

11. Cancellation of Custom or Modified Products and Re-stocking Fees: All sales are final, subject to the terms hereof. Orders, including orders of custom or modified Products and sign banners, may be cancelled at no charge if the cancellation is made on the invoice date only. Cancellations of orders for Products that are in stock (and not custom or modified or sign banners) made after invoice date will result in a 25% restocking fee. Cancellation of custom orders or sign banners will result in full payment being forfeited, meaning Buyer shall not be entitled to any refund for canceled orders of custom or modified Products or sign banners to the extent such cancellation is made after the invoice date. Without limiting the foregoing, Buyer may cancel this order, in whole or in part, upon written notice to Impact Air Bags.

 

12. Returns Policy: For any item purchased from Impact Air Bags and returned for reasons unrelated to a valid warranty claim, a restocking fee of 25% of the price of the item(s) returned will be paid by Buyer. The foregoing shall not apply to custom or modified products. All sales of custom or modified products are final.

 

13. Warranty: Except as otherwise provided herein, Impact Air Bags warrants that new (and not used) inflatables sold hereunder, including any inflatables sold to an indoor facility, will be free from defects in material and design for (1) year from the date of shipment. Impact Air Bags warrants that accessories sold hereunder, EXCLUDING misters, soaker hoses, zippers, and grommets, will be free from defects in material and design for thirty (30) days from the date of shipment. Notwithstanding anything contained herein to the contrary, the warranty of Impact Air Bags as provided herein shall be void if any repairs, alterations, modifications, or work have been performed on the product alleged to be defective, or to the extent that any alleged defect is the result of negligence, abuse, misuse, improper maintenance, storage, or usage, accident, action, or inaction on the part of any party other than Impact Air Bags. Nor shall Impact Air Bags be responsible for any defect to the extent due to off-label use or uses that do not conform to the applicable instructions. In addition, any defect in products resulting from unusual wear and tear caused by excessive usage is excluded from Impact Air Bags’ warranty coverage. The customer’s usage of any inflatable product on a hard surface base (any surface other than grass), without the use of a tarp, shall constitute improper usage and any resulting damage or defect shall not be covered by Impact Air Bags warranty. Colors, artwork, and design are subject to change without prior notice and will not be considered defects. Subject to the foregoing, if a product is not as warranted and Buyer notifies Impact Air Bags in writing within the appropriate limited-warranty period set forth in this Section 13 and returns the product to Impact Air Bags, at Buyer’s expense, within said period, Impact Air Bags will, at its option, promptly repair or replace the defective product or refund the purchase price of the product that proves defective within the applicable warranty period. This remedy will not be deemed to have failed of its essential purpose so long as Impact Air Bags is willing and able to repair or replace a defective product, or refund the purchase price, in the prescribed manner. Warranty repair work will be provided by Impact Air Bags at the Glendora, CA office. Impact Air Bags disclaims any responsibilities for modifications and repairs from an unauthorized repair plant. All shipping costs to and from our facility for warranted items will be paid by customer. All new Blowers are warranted directly by the respective manufacturer. Impact Air Bags offers no warranty in connection with any Blower. For blower trouble-shooting or warranty, please refer to the blower manufacturer manual included in box. In addition, Impact Air Bags offers no warranty on misters, soaker hoses, zippers, and grommets. All used inflatables are sold “as is” with no warranty. Except as provided in the above agreement, Impact Air Bags makes no other warranties on its products.

 

14. Taxes: All charges are subject to the federal, state, and local taxes, if any, pertinent at the point of delivery. Buyer shall pay such taxes imposed on this order, and all penalties and interest, if any, accrued therewith. All “will call” orders and orders shipped with a California destination are subject to California sales tax, unless recipient has a valid California Seller’s Permit.

 

15. Interpretation: The rights and liabilities arising out of this contract with Impact Air Bags 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).

16. Effect of Breach on Risk of Loss: Breach of this contract by Impact Air Bags shall have no effect on the provisions controlling the risk of loss of the goods, and Sections 2-510 (1) and 2-510 (2) of the Uniform Commercial Code shall have no effect on this Confirmation of Order.

 

17. Indemnification: Buyer agrees to indemnify, hold harmless, and defend Impact Air Bags from actions and claims of third parties, including customers of Buyers and users of the goods and products sold to Buyer, arising out of or in connection with the use of the goods and products herein described. Buyer’s obligation to indemnify, hold harmless, and defend Impact Air Bags under this provision shall also include claims made against Impact Air Bags for Impact Air Bags’ own negligence, including claims of defective design or manufacturing of the goods and products sold to Buyer as well as any claim that Impact Air Bags failed to properly provide warnings or instructions with the goods or products sold to Buyer. In the event Impact Air Bags is required to commence an action to enforce this provision, Buyer shall pay all of Impact Air Bags’ legal costs and expenses.

 

18. Integration: There are no representations, warranties, or conditions, express or implied, statutory or otherwise, except those herein contained, and no agreements or waivers collateral hereto shall be binding on either party unless in writing and signed by Buyer and accepted by Impact Air Bags. This Confirmation of Order contains all of the promises, warranties, terms, and conditions of the agreement between the parties and supersedes any and all oral or implied promises, undertakings, and prior agreements.

19. Governing Law, Jurisdiction, and Venue: In the event of litigation between the parties concerning the order or any products shipped to Buyer hereunder, such action shall be governed by the laws of California, U.S.A., venue shall be in West Covina, California and the action shall be brought in the California or federal courts of appropriate jurisdiction.