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PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS
VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND RESPONSIBILITIES, AS
WELL AS LIMITATIONS AND EXCLUSIONS. THESE TERMS AND CONDITIONS WILL
APPLY TO AND GOVERN ALL PURCHASES OF ALL PRODUCTS SOLD OR DELIVERED
TO YOU ("CUSTOMER") BY OR ON BEHALF OFONSITEMOBILITY, INCLUDING ANY
LICENSES DOWNLOADED TO YOU FROM OUR WEBSITE OR OTHERWISE. OnSiteMobility RESERVES
THE RIGHT TO CHANGE THESE TERMS AND CONDITIONS WITHOUT PRIOR NOTICE
AT ANY TIME FOR ANY REASON, IN OnSiteMobility'S SOLE DISCRETION.
1. ACCEPTANCE.
Your acceptance of each and all of these terms and conditions shall
be indicated by any of the following, whichever occurs first:
(i) By
clicking the "I ACCEPT" button below;
(ii) By
your written acknowledgement of these terms and conditions;
(iii)
By your acceptance of any shipment or download of any part of the items
specified for purchase or delivery by you to OnSiteMobility; (iv)
By your placing any order for products or services over this website;
or
(v) Any
other act or expression of acceptance by you. Other than as specifically
provided in any separate formal agreement signed by OnSiteMobility, these terms
and conditions may not be altered, supplemented, or amended, orally
or in writing. Any attempt to alter, supplement or amend these terms
and conditions or to place an order for products which is subject to
additional or altered terms and conditions will be null and void. OnSiteMobility's
silence or failure to respond to any subsequent term, condition or proposal
shall not be deemed to be OnSiteMobility's acceptance or approval thereof.
2. INDEPENDENT CONTRACTORS.
Customer hereby acknowledges that this Website may be co-branded by
OnSiteMobility with a retailer, dealer or other entity ("Retailer"). Notwithstanding
the possible co-branding of this Website, Customer acknowledges and
agrees that any sales made hereunder are between Customer and OnSiteMobility
solely based on the terms and conditions contained herein. Retailer
and OnSiteMobility are independent contractors, and Retailer has no right or
authority to make any representations or warranties on behalf of OnSiteMobility,
or to in any way commit or obligate OnSiteMobility in any manner whatsoever.
Retailer shall not be considered an agent, legal representative, partner
or joint venturer of OnSiteMobility, and OnSiteMobility shall have no liability to Customer
or any other party for any statements, representations, warranties,
acts or omissions of the Retailer.
3. DELIVERY.
Unless otherwise agreed to in a writing signed by OnSiteMobility, delivery shall
be made in accordance with OnSiteMobility's delivery policies in effect on the
date of shipment. Risk of loss to the products shall pass from OnSiteMobility
to Customer on shipment from OnSiteMobility's facilities or, as applicable,
on commencement of download. Title to software shall remain with the
applicable licensor. OnSiteMobility shall not be liable for any delays in delivery
beyond the reasonable control of OnSiteMobility including, but not limited to,
delays caused by unavailability or shortages of the products from OnSiteMobility's
suppliers, natural disasters, acts of war, acts or omissions of Customer,
fire, strike, riot, governmental interference, unavailability or shortage
of materials, labor, telecommunications, fuel or power through normal
commercial channels at customary and reasonable rates, failure or destruction
of plant or equipment arising from any cause whatsoever, transportation
failures or computer-related or transmission failures. Customer specifically
acknowledges that downloads over the Internet may fail, be corrupted
or be delayed for a variety of reasons over which OnSiteMobility has no reasonable
control, and Customer shall not hold OnSiteMobility liable for any failures,
corruptions or delays.
4. PRICE AND PAYMENT.
Terms of payment are within OnSiteMobility's sole discretion, and unless otherwise
agreed to in a writing signed by OnSiteMobility, payment must be received by
OnSiteMobility prior to OnSiteMobility's acceptance of an order from Customer. Payment
for products may be made by credit card or some other prearranged payment
method accepted by OnSiteMobility unless OnSiteMobility has agreed to credit terms in
writing. No order shall be binding upon OnSiteMobility until accepted by OnSiteMobility.
Product and pricing data may change without notice. Final pricing on
a Customer's order is effective on the date that payment for the order
has been received. Separate charges for shipping and handling may be
charged by OnSiteMobility. Customer is responsible for sales and all other taxes
associated with the order, except for OnSiteMobility's franchise taxes and taxes
on OnSiteMobility's net income. OnSiteMobility may add taxes and shipping charges to
invoices or payment requirements. Customer shall indemnify and hold
OnSiteMobility free and harmless from and against the imposition and payment
of all taxes, whether or not they are stated in any invoice for products
shipped to Customer. OnSiteMobility, at its option, may at any time, separately
bill Customer for any taxes not included in OnSiteMobility's invoice or otherwise
paid for by Customer and Customer shall pay such taxes, or in lieu thereof,
shall provide OnSiteMobility with a tax exemption certificate acceptable to
the applicable taxing authorities. If any such certificate furnished
to OnSiteMobility is held invalid or if the sale is otherwise found to be taxable,
Customer agrees to pay promptly any taxes ( plus interest) found due,
but not collected as a result of OnSiteMobility's reliance upon Customer's certificate.
5. SOFTWARE.
All software is provided subject to the license agreement accompanying
the software. Customer agrees that it will be bound by the license agreement
in accordance with the provisions provided with the software by the
licensor. Customer's acceptance shall be in compliance with the licensor's
acceptance procedure. For example, this may be pursuant to a "click-wrap"
or "shrink-wrap" license providing for acceptance upon loading the software
or opening the package or breaking the seal. Any warranties and technical
support concerning the software, if any, shall be contained in the license
agreement that governs its purchase and use, and shall consist of the
warranties and technical support of the third-party licensor, and not
OnSiteMobility. These warranties and technical support may vary from product
to product. Disclaimers of warranties are provided in more detail below.
6. WARRANTY.
It is understood that OnSiteMobility is not the manufacturer of any of the products
sold to Customer. All warranties offered are those of the manufacturers
of the products, if any, and not OnSiteMobility. Retailers or any third-party
dealers, are not agents of OnSiteMobility and OnSiteMobility has no obligation or liability
arising from any warranty made by any Retailer or third-party dealer.
In purchasing the products, Customer is relying solely upon the manufacturer's
specifications. There are no understandings, agreements or statements
made in or conduct implied from any past dealings which shall apply
to the products being sold hereunder. CUSTOMER REPRESENTS, ACKNOWLEDGES
AND AGREES THAT OnSiteMobility HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES,
DIRECT OR INDIRECT, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER,
INCLUDING WITHOUT LIMITATION, THE DESIGN OR CONDITION OF ANY PRODUCT,
OR ANY PRODUCT'S MERCHANTABILITY OR ITS SUITABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY
PRODUCT, AND ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED HEREBY. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OnSiteMobility
BE LIABLE TO CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR
EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT
OR ANY PRODUCT PROVIDED TO CUSTOMER, INCLUDING BUT NOT LIMITED TO DAMAGES
FOR LOST PROFITS, LOSS OF USE, LOST DATA, BUSINESS INTERRUPTIONS OR
ANY DAMAGES OR SUMS PAID BY CUSTOMER TO THIRD PARTIES, EVEN IF OnSiteMobility
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION
OF LIABILITY SHALL APPLY WHETHER ANY CLAIM IS BASED UPON BREACH OF CONTRACT,
WARRANTY, NEGLIGENCE, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES
OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE
REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE OR OTHERWISE. OnSiteMobility HAS NO
DUTY TO DEFEND, INDEMNIFY OR HOLD HARMLESS THE CUSTOMER FROM AND AGAINST
ANY DAMAGES OR COSTS WHICH MAY BE INCURRED IN CONNECTION WITH ANY INFRINGEMENT
OF PATENTS OR TRADEMARKS OR IN VIOLATION OF ANY COPYRIGHTS BY PRODUCTS
THAT WERE NOT MANUFACTURED BY OnSiteMobility.
7. RETURN POLICY.
OnSiteMobility offers a return policy on selected items based on manufacturer
return policies. OnSiteMobility's return policy can be accessed online.
8. EXPORT. All
products sold by OnSiteMobility are intended to be sold only in the United States
for use in the United States only. Shipment of any of the products outside
of the United States may require a valid export license. Customer agrees
to defend, indemnify and hold harmless OnSiteMobility for any violation by Customer
of any United States export restrictions. Notwithstanding the foregoing,
Customer agrees and represents that it is buying the product for its
own internal use only, and not for resale, export, or use outside the
United States.
9. BINDING ARBITRATION.
Any claim, dispute or controversy (whether in contract, tort or otherwise,
whether pre-existing, present or future, and including statutory, common
law, intentional tort and equitable claims) against OnSiteMobility, its agents,
employees, successors, assigns or affiliates, which arise from or in
any way relate to this Agreement, its interpretation, or the breach,
termination or validity hereof, OnSiteMobility's advertising, website or any
purchase related to any of the foregoing may, at OnSiteMobility's sole option,
and only upon the exercise of that sole option by OnSiteMobility, be resolved
exclusively and finally by binding arbitration administered by the National
Arbitration Forum (NAF) under its Code of Procedure then in effect (available
via the Internet at http://www.arb-forum.com, or by telephone at 1-800-474-2371).
The arbitration will be limited solely to the dispute or controversy
between Customer and OnSiteMobility. Any award of the arbitrators shall be final
and binding on each of the parties, and may be entered as a judgment
in any court of competent jurisdiction. Information may be obtained
from the NAF at P.O. Box 50191, Minneapolis, Minnesota 55405. The arbitration
hearing, if any, shall take place in Harrisburg, Pennsylvania. Customer
irrevocably consents to such venue. Customer shall treat the existence
and results of arbitration as strictly confidential. This agreement
and any dispute in connection herewith shall be governed by the laws
of the Commonwealth of Pennsylvania. In the event that more than one
claim, dispute or other matters in question shall be in existence at
the same time, OnSiteMobility may at its sole option decide which of such claims,
disputes, or other matters in question shall be arbitrated and which
matters shall not be arbitrated. Such decision shall be final and unappealable,
and no arbitration shall be authorized to consider, decide, or make
any award or any claim or matter which OnSiteMobility has determined shall not
be arbitrated. In the event that Customer wishes to request arbitration
of any claim, dispute or other matter in question, the Customer shall
file a notice of demand for arbitration in writing with OnSiteMobility specifically
describing the claims, disputes and other matters in question which
the Customer wishes to submit to arbitration. Customer may not unilaterally
elect arbitration or cause arbitration to occur. OnSiteMobility has the sole
discretion to decide whether or not any such claims, disputes and other
matters shall be submitted for arbitration. If OnSiteMobility wishes to submit
any claim, dispute or other matter in question for arbitration, whether
or not it is the subject of a request for arbitration by Customer, OnSiteMobility
shall file a notice of demand for arbitration with the NAF and with
Customer. In any event that OnSiteMobility elects not to arbitrate, the claim
shall be litigated in the Court of Common Pleas, Dauphin County, or
the United States District Court for the Middle District of Pennsylvania.
10. MISCELLANEOUS.
These terms and conditions constitute the final, complete and exclusive
agreement of the parties with respect to the subject matter hereof and
shall supercede all prior offers, negotiations, understandings and agreements.
Any waiver by OnSiteMobility of one or more of these terms and conditions or
any defaults hereunder shall not constitute a waiver of the remaining
terms and conditions or any future defaults hereunder. This agreement
shall be enforceable to the fullest possible extent, regardless of any
partial invalidity or unenforceability, and no failure or delay by either
party in exercising or enforcing any right hereunder shall operate as
a waiver thereof or preclude any other exercise or reinforcement of
rights hereunder. This agreement may not be assigned by Customer.
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