Terms and Conditions.
Terms and Conditions (Point of Sales (POS) System)
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY. THE TERMS AND CONDITIONS OF PRODUCT SALES ARE LIMITED TO THOSE CONTAINED HEREIN AND THOSE WITHIN THE PURCHASE ORDER. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU (“BUYER”) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.
BY MAKING AN ORDER FOR PRODUCTS FROM POMPSPLACE (“SELLER”), BUYER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS CONTROL ALL FUTURE PURCHASES BY BUYER, EVEN IF BUYER DOES NOT SIGN A PURCHASE ORDER AT THE TIME OF SUCH SUBSEQUENT PURCHASE. IF BUYER AND SELLER SIGNED A SEPARATE AGREEMENT THAT AGREEMENT SHALL CONTROL ONLY WITH RESPECT TO THE PRODUCTS PURCHASED THERE-UNDER. ALL NEW PRODUCT PURCHASED FROM SELLER SHALL BE GOVERNED BY THESE TERMS AND CONDITIONS.
These Terms and Conditions constitute a binding contract between BUYER and SELLER (as defined in the Purchase Order) and are referred to herein as either “Terms and Conditions” or this “Agreement”. BUYER accepts these Terms and Conditions by placing an order with SELLER through a Purchase Order.
1) Purchase Price: BUYER agrees to pay SELLER the price for the Products, including any required down payment, in the amount and in accordance with the payment terms set forth in the Purchase Order. Any change in the number of users, sites, or system configurations must be requested to SELLER not less than 30 days before such change and may require the payment of additional fees. SELLER may at its discretion provide updates for the products or Software at no additional charge in conjunction with selected Services, or charge an additional fee for such updates.
2) Taxes: All prices and charges for Products provided hereunder are exclusive of any taxes applicable to the transaction, such as value-added taxes, sales or use taxes, duties, or other taxes or levies imposed by any government, public authority, or government agency on BUYER’s purchase of the Products hereunder, all of which are the responsibility of BUYER to pay, provided, for the avoidance of doubt, that BUYER shall not be responsible for payment of any taxes based on the income, property or employment of employees by SELLER. In the event SELLER is ever assessed or threatened to be assessed taxes, fees, levies, penalties, and/or fines regarding BUYER’s failure to pay any taxes applicable to the transaction, BUYER authorizes SELLER to submit a payment draft for the amount claimed due from BUYER.
3) Cancellation/Return Policy: All sales are final sales. Our products cannot be returned, exchanged, or refunded.
4) Delivery: SELLER shall ship products to BUYER within EIGHT WEEKS FROM RECEIPT OF THE PURCHASE ORDER AND PAYMENT OF THE PURCHASE PRICE SPECIFIED IN THE PURCHASE ORDER IS MADE. BUYER understands that all product purchases must be paid (as specified in PO) prior to shipment of the products to BUYER. The exact delivery time cannot be guaranteed.
5) Product Support: If the products are discovered to contain a defect in materials or workmanship during the products Warranty Period SELLER will provide products repair/replacement service support on any products supplied by SELLER which failed during normal use. During this products Warranty Period BUYER shall not be responsible for the cost of labor and parts in the repair/replacement of such products. BUYER will be responsible for the cost of shipping and other out-of-pocket expenses made by SELLER. This support is limited to assistance in the repair or replacement of only products provided by SELLER. This provision does not cover damage resulting from acts of God, flood, lightning, malicious software, BUYER’S negligence, alterations, mishandling, BUYER’s improper installation, or BUYER’s failure to protect such products. SELLER shall have the sole discretion to either repair the products or replace them. In the course of providing such support, SELLER may use new or serviceable parts that are equivalent to new in performance. SELLER will ship replacement or loan products as promptly as such products are available and will expedite repairs on failed products so as to minimize downtime for BUYER. However, in no event will SELLER be liable for loss of business, profits, or any other damages to BUYER when it takes SELLER to repair or replace the products. The foregoing is BUYER’S sole remedy for product failures supplied by SELLER in the first month following delivery. Notwithstanding anything above SELLER will not be obligated to initiate or perform products repair/replacement service support if any license granted to BUYER by SELLER has been suspended, terminated, canceled, or is otherwise impaired or if BUYER is in breach of any provision of these Terms and Provision.
Following the products Warranty Period SELLER, at SELLER’s discretion may provide product repair support to BUYER for the duration of the license granted by SELLER at a fee determined solely by SELLER. In no event, however, will SELLER be required to replace any products after the end of the products Warranty Period. However, in no event will SELLER be liable for loss of business, profits, or any other damages to BUYER when it takes SELLER to repair or replace the products.
6) Limitation of Liability:
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER, SELLER’S SHAREHOLDERS, EMPLOYEES/AGENTS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCTS, THE FAILURE TO PROVIDE SUPPORT SERVICES, OR UNDER OR IN CONNECTION WITH ANY PROVISION OF THESE TERMS AND CONDITIONS, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF SELLER, SELLER’S SHAREHOLDERS, EMPLOYEES/AGENTS OR ANY SUPPLIER, AND EVEN IF SELLER, SELLER’S SHAREHOLDERS, EMPLOYEE/AGENTS OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT BUYER ACTUALLY PAID SELLER UNDER THE TERMS OF THIS AGREEMENT.
7) Future Expansion: Any Products requested by BUYER in the future will be based on prices in effect at that time.
8) Notice of Commercial Product: The goods and services provided by SELLER to BUYER under this Agreement are not consumer products and are therefore not governed by consumer product laws.
9) Metadata and DataWarehousing: As an additional condition of use by BUYER of SELLER’s goods and services, BUYER acknowledges and agrees that SELLER may collect and warehouse electronic data and other information relating to BUYER’s purchases and sales through BUYER’s use of SELLER’s software. The purpose of collecting this data is to compile real-time information about sales, retail pricing, and customer purchasing trends within specific geographic boundaries to drive business intelligence dashboards of how BUYER’s business compares to the group.
BUYER agrees SELLER may share this information with BUYER and other customers of SELLER provided SELLER does not disclose the identity of BUYER or BUYER’s customers and vendors, including but not limited to names, addresses, and phone numbers to anyone other than BUYER’s supplier(s).
- a) Assignment. BUYER may not assign any of the rights, interests, or obligations under this Agreement without the prior written consent of SELLER.
- b) Notices. BUYER consents to receive electronic records, which may be provided via a Web browser or e-mail application connected to the Internet; individual BUYERS may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting SELLER.
- c) Time of Essence. Time is of the essence with respect to all dates and time periods set forth or referred to in this Agreement.
- d) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state, without regard to conflict-of-law principles. Any action or proceeding seeking to enforce any provision of this Agreement or based on any right arising out of this Agreement must be brought against any of the parties in Court of the State, subject to applicable jurisdictional requirements, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to such venue.
- e) Attorney Fees.If SELLER has to retain an attorney to interpret or enforce the provisions of this Agreement, to rescind this Agreement, or otherwise with respect to the subject matter of this Agreement, even if an arbitration, suit, or action is not instituted, the SELLER will be entitled to recover from BUYER with respect to such issue, in addition to costs, reasonable attorney fees incurred in the consultation, preparation, prosecution, or defense of such issue.
- f) Entire Agreement. These Terms and Conditions, together with the Purchase Order (and including the documents and instruments referred to in this Agreement) and any modifications as set forth below constitute the complete and exclusive agreement and understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior understandings and agreements, whether written or oral, among the parties with respect to such subject matter. This Agreement may not be explained or supplemented by any prior course of dealings or trade by custom or usage.
- g) Modification. SELLER reserves the right to make changes to these Terms and Conditions at any time upon 30 days written notice to BUYER. Upon such change, BUYER shall have the right to terminate this Agreement. Any use of the products or services by BUYER after 30 days or after such notice shall be deemed to constitute acceptance by BUYER of such modifications.
- h) Severability: If any provision contained in this Agreement is or becomes invalid, illegal, or unenforceable in whole or in part, such invalidity, illegality, or unenforceability shall not affect the remaining provisions and portions of this Agreement, and the invalid, illegal, or unenforceable provision shall be deemed modified so as to have the most similar result that is valid and enforceable under law.
- i) Survival: Section 2., Taxes, 5b)., Deactivation, 5e)., Copies, 5f)., Transfer, 5g)., Proprietary Rights, 5h)., Notices, 11., Limitation of Liability, 15., Notice of Commercial Product, and 16., Miscellaneous shall survive the termination of this Agreement for any reason.
- j) Definitions. “Products” mean products and related services provided by SELLER. “Purchase Order” means a request by BUYER for the license and purchase of Products that are accepted by SELLER.