AGREEMENT
BY ORDERING ONE OR MORE HANDHELD COMPUTERS OR OTHER PRODUCTS (EACH A “PRODUCT”) FOR RENT OR PURCHASE FROM SOFTWARE DEVELOPERS, LLC, DBA SELLER HARDWARE LLC ( “SELLER HARDWARE LLC,” “WE,” OR “US”), YOU OR THE COMPANY ON WHOSE BEHALF YOU ARE ORDERING PRODUCTS (“YOU”) AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT (“AGREEMENT”) SET FORTH BELOW. AFTER YOU HAVE READ THE AGREEMENT, YOU WILL BE ASKED TO AUTHENTICATE AND ACCEPT THIS AGREEMENT BY CLICKING THE “I ACCEPT/AGREE” BUTTON OR HYPERTEXT LINK AT THE BOTTOM OF THIS WEB PAGE. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ANY AMENDMENTS THERETO AFTER THIS DATE.
SELLER HARDWARE LLC’S ACCEPTANCE OF YOUR ORDER WILL RESULT IN A BINDING CONTRACT BETWEEN YOU AND SELLER HARDWARE LLC. UPON SUCH ACCEPTANCE AND RECEIPT OF ANY REQUIRED PAYMENT, WE WILL SEND TO YOU AT YOUR ADDRESS THE PRODUCTS THAT YOU ORDERED, SUBJECT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT AS SET FORTH ABOVE, THEN YOUR ORDER WILL NOT BE ACCEPTED OR PROCESSED, AND YOU WILL NOT BE ENTITLED TO RECEIVE ANY PRODUCTS.
AGREEMENT
This Agreement is between You and SELLER HARDWARE LLC. Subject to the terms of this Agreement, SELLER HARDWARE LLC agrees to provide You with the Products that you ordered online.
RENTAL TERMS AND CONDITIONS
RENTAL FEE. You agree to timely pay to Seller Hardware LLC the rental fee set forth in the order form for the entire Rental Period (defined below), as such fee may be changed in accordance with the terms of this Agreement (“Rental Fee”). Payment may be made by credit card or ACH only (“Account”). You also authorize Us to place a charge or reserve on Your credit card or other Account as a security deposit of up to $[125] per Product. If you pay through an Account, We may charge your Account in advance for the upcoming month until we receive Your notice of cancellation as set forth below. Such security deposit is refundable unless it is applied, e.g., to Your applicable final payment.
RENTAL PERIOD. Your rental period commences from the date We ship or cause to be shipped Your Products to You until You return the Products to Us in accordance with this Agreement (“Rental Period”). You must notify Us by email at [email protected] that You intend to terminate the Rental Period at least 15 days prior to returning any Products. Please note:
For each Product, the minimum Rental Period is one calendar month. The Rental Period will automatically renew for an additional month until you notify Us no later than the 14th of the month and return the Product to Us as set forth above. This means that Your rental subscription will continue until so cancelled. Our cancellation policy is that You may cancel at any time after the first month. If You do not notify Us as required but return the Product to Us, or You notify Us but do not return the Product as required, the Rental Period will terminate at the end of the month following the month in which We receive the Product. In either instance, You will be responsible for the Rental Fee for the entire following Rental Period.
RECEIPT OF PRODUCTS FROM US. You should inspect and test the Products immediately upon receipt from Us. You shall have seven days from delivery to notify us and return any damaged or defective Products to Us. You must notify Us immediately if there are any Products (or parts thereof) missing from Your order. Where Products ordered together are indicated as being shipped in separate shipments, You must notify Us promptly if there are any missing shipments.
RETURN OF PRODUCTS UPON TERMINATION OF THE RENTAL PERIOD. You must return the Products when you notify us of Your termination or cancellation of Your Rental Period. You may use the return shipping label included with the Products, and must return the Products in good repair and condition, except for ordinary wear and tear. You are solely responsible for all shipping, handling, and insurance costs in returning Products to us at the end of the Rental Period. You authorize us to charge Your credit card or, in Our sole discretion, to invoice You, for any damaged or missing Products (or parts thereof) at the end of the Renewal Period.
LOST AND STOLEN DEVICES. SELLER HARDWARE LLC holds no responsibility for devices that are lost or stolen during the duration of its lease. If your device is lost or stolen, you will be charged a one time fee of 12x (12 times) the monthly cost, to be paid in full at the time that the device is reported lost or stolen, in order to discontinue your monthly subscription. This fee will apply to all devices that are not returned within 15 days of cancelling the device’s subscription or lease.
YOUR RESPONSIBILITIES DURING THE RENTAL PERIOD. You agree to use the Products only as intended by the manufacturer, and only in accordance with the respective manufacturer’s user manual. You agree to keep the Products in good repair and condition, except for ordinary wear and tear, and to be responsible for any damage or excessive wear and tear.
You agree to be solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Products, including, without limitation, the internet, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You also agree to be solely responsible for maintaining the security of the Equipment, Your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Your account or the Equipment with or without Your knowledge or consent. You acknowledge that You are solely responsible for the charges related to Your obligations under this Agreement.
You agree not to (i) use the Products to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (ii) use the Products to store or transmit Malicious Code, (iii) interfere with or disrupt the integrity or performance of the Products or third-party data contained therein, or (iv) attempt to gain unauthorized access to the Products or their related systems or networks. For purposes of this Agreement, “Malicious Code” means viruses, worms, time bombs, Trojan horses, ransomware, and other harmful or malicious code, files, scripts, agents or programs. You agree to (a) be solely responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Customer Data and of the means by which Users acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and promptly notify Us in writing of any such unauthorized access or use, and (iv) use the Products only in accordance with their respective user manuals (which may be supplied by the manufacturer) and applicable laws and government regulations. “Users” means individuals who are authorized by You to use the Products, and may include but are not necessarily limited to Your employees, consultants, contractors and agents.
PURCHASE TERMS AND CONDITIONS
PURCHASE PRICE. You agree to timely pay to Seller Hardware LLC the applicable purchase price fee set forth in the order form for the Products (“Purchase Price”). Payment may be through Your Account. We may charge your Account in advance for the upcoming month until we receive Your notice of cancellation as set forth below.
DELIVERY. All delivery times and shipment dates are approximate and may be changed by Us. We may ship Your entire order in a single shipment or in Our discretion in multiple shipments from time to time, and in Our discretion each such shipment shall be considered as a separate contract. Any default as to one or more such contracts shall not affect the remaining contracts.
TRANSFER OF PROPERTY AND RISK OF LOSS. As between the parties, We retain all rights in and title to the Products purchased until the Purchase Price therefor is paid in full; and We retain all rights in and title to the Products rented from Us. You shall obtain the rights and title to Products purchased upon payment to Us of the Purchase Price and any taxes, excises, and other charges, subject, however, to a security interest which We hereby reserve, and You hereby grant, in Products shipped until the entire amount therefor has been paid. You agree to execute any documents required to perfect Our security interest in the Products within five (5) days of presentation and thereafter We shall have power of attorney to execute such documents. The risk of loss, including, but not limited to the risk of theft, damage or destruction of the Products, transfers to You EXW at Our warehouse or order fulfillment center. You agree to take all actions that We may reasonably request in order to maintain and protect the Products, and to perfect, protect, maintain or continue, and not to do anything to interfere with, Our interests in the Products. We may offset any amounts We may owe You against any amounts You owe Us.
GENERAL TERMS AND CONDITIONS
PAYMENT TERMS.
(a) By clicking the “I Accept/Agree” button or hypertext link at the bottom of this web page, You authorize Us to debit (“Debit”) Your Account for all Rental Fees, Purchase Price, and other charges due and payable under this Agreement (“Fees”). If a Debit is returned or not processed for Non-Sufficient Funds (NSF) or similar reason, You authorize Us to collect a return payment fee of $35, by electronic debit from Your Account. We will not be liable if a Debit is dishonored by Your bank or other financial institution. In such case and at such time, We may, in Our sole discretion, attempt multiple attempts to Debit Your Account. You will be deemed not to have paid the charge until the funds are actually collected.
(b) We may choose to bill through an invoice without Debiting your Account, in which case, full payment for invoices issued in any given month must be received by Us within 30 days after the date of the invoice.
(c) All Fees are non-refundable, except with Our prior written agreement in Our sole discretion.
(d) Notwithstanding anything to the contrary in this Agreement, We may, without limiting Our other rights and remedies, immediately and automatically without notice suspend Services on past due accounts, accelerate Your unpaid Fee obligations under this Agreement so that all such obligations become immediately due and payable, and/or terminate this Agreement in accordance with the Termination/Cancellation provisions, below. Unpaid Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection (including but not limited to Our attorneys’ fees). You shall be responsible for and timely pay all taxes associated with Services or Products other than taxes based on Our net income.
INDEMNITY. You agree to defend, indemnify, and hold Us and Our affiliates harmless, and Our and their respective officers, directors, shareholders, employees, agents, and representatives (collectively, “Indemnified Parties”), from any and all damages, losses, liabilities, claims, demands, suits, proceedings, settlements and expenses (including without limitation costs and attorneys’ fees) (collectively, “Claims”) incurred by an Indemnified Party in connection with any claim or action arising out of or relating to a breach by You of this Agreement or otherwise from Your use of any Products; provided, however, that We or the Indemnified Party promptly notifies You of any Claims related thereto and cooperates reasonably and provides You a reasonable opportunity to control the defense and settlement, except that You shall not settle or agree to enter judgment that includes any payment by or admission of liability or other matter against the interest of any Indemnified Party. (The absence of prompt notification by an Indemnified Party shall not excuse Your obligations hereunder except to the extent You have been materially prejudiced thereby.) We and the relevant Indemnified Party shall be permitted to participate in such defenses, negotiation, or settlement by counsel of Our and its own choosing and expense, and You shall reasonably cooperate with Us.
DISCLAIMER OF WARRANTY. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR PARTICULAR PURPOSE; (iii) EFFORT TO ACHIEVE PURPOSE; (iv) QUALITY; (v) ACCURACY; (vi) NON-INFRINGEMENT; (vii) TITLE; (viii) MARKETABILITY; (ix) PROFITABILITY; (x) SUITABILITY; AND/OR (xi) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY AGAINST INFRINGEMENT, AND SHALL NOT BE LIABLE TO YOU FOR THE INFRINGEMENT OF ANY PROPRIETARY RIGHTS OF ANOTHER.
LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. OUR LIABILITY TO YOU HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY YOU TO US UNDER THIS AGREEMENT. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE, LOSS OF DATA, OR DELAY IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF.
TERMINATION/CANCELLATION.
(a) Either party may terminate this Agreement at any time after the initial monthly Rental Period for any reason upon at least thirty (30) days’ written notice to the other party.
(b) We may terminate or cancel this Agreement immediately if You:
(1) Are in default of or have breached any provision of this Agreement and such default or breach has not been cured within 10 days of Our written or emailed notice thereof to You; or
(2) Become insolvent or seeks protection, voluntarily or involuntarily, under any bankruptcy laws; or
(3) Engage in any illegal, unfair, or deceptive business practices.
(c) In the event We terminate/cancel this Agreement, We may: (i) declare all amounts owed to Us to be immediately due and payable; and (2) cancel any Services we provide to You under this Agreement or any other agreement with You; and (iii) suspend or cease performance of all Our other obligations without liability to You.
(d) In the event We terminate/cancel this Agreement, You must immediately: (i) cease using all Products; (ii pay to Us all amounts that are due and payable; (iii) at Your sole cost and expense, return any Products You ordered from Us; and (iv) continue to be responsible to Us under this Agreement.
(e) Our rights and remedies above shall be cumulative and in addition to all other rights and remedies available to Us in law or equity.
GENERAL.
(a) Governing Law. This Agreement shall be governed by and construed in accordance with the State of New Jersey without regard to the United Nations Convention on Contracts for the International Sale of Goods, or the choice of law rules of any jurisdiction.
(b) No Assignment. Neither this Agreement nor any right or obligation hereunder may be assigned, transferred, delegated, pledged or encumbered by You (“Assignment”) without Our prior written consent in Our discretion. Any purported Assignment without such consent will be void ab initio. For purposes of the preceding sentence, a change in control shall constitute an Assignment requiring Our prior written consent; for this purpose, a “change in control” means a transfer, on a cumulative basis, of shares, voting rights or ownership interests which will result in a change in the identity of the person or persons exercising, or who may exercise, effective control of You. We may freely assign its rights and duties hereunder. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the successors and assigns (whether by operation of law, merger, change of control or otherwise) of the parties.
(c) Waiver. No waiver by Us of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
(d) Severability. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
(e) Force Majeure. We will not be liable to You, or considered to be in breach of this Agreement, on account of any delay or failure to perform as a result of any acts of God, actual or threatened acts of terrorism, acts of any political entity, or natural disasters, or any other causes or conditions that are beyond Our reasonable control. Should any such event occur, We will attempt in good faith to give prompt written notice to You and will use commercially reasonable efforts to minimize the impact of the event.
(f) No joint venture or partnership. This Agreement shall not be construed to be a joint venture or a partnership between the parties. Except as expressly set forth in this Agreement, neither party has any authority of any kind to bind the other in any respect whatsoever.
(g) Notice. Any notice required to be given under this Agreement shall be in writing and delivered to the other designated party at the above stated address or mailed by certified, registered or Express mail, or by Federal Express.
(h) Binding Arbitration. In the event of a dispute between the parties arising out of this Agreement (“Dispute”), the parties agree to use their diligent good faith efforts to negotiate with one another to resolve the Dispute. Such efforts shall include, promptly upon notice by any party, at least one in-person meeting of the parties’ respective executive level officers with authority to settle the Dispute, at least five (5) business days prior to such meeting the parties shall exchange memoranda stating the issues in dispute and their positions, summarizing the negotiations that have taken place and attaching relevant documents. All communications and writings exchanged between the parties in connection with such discussions shall be confidential and shall not be used or referred to in any subsequent binding adjudicatory process between the parties. Any Dispute that cannot be resolved between the parties informally or by mediation shall be resolved by binding arbitration under the Commercial Arbitration rules then in force of JAMS, including its Appeal Procedures, or any other rules or organization upon which the parties may agree at that time, before a single arbitrator. In order to facilitate understanding by the arbitrator, all arbitration proceedings shall be conducted in English (which may include the use of translators at the expense of the party who or whose witness needs such assistance). If the parties are unable to agree on an arbitrator from the list provided by JAMS, they shall request from JAMS a list of five available arbitrators with experience in similar disputes, and each party may strike two names, leaving the remaining name(s) as the arbitrator. If more than one name remains, JAMS will make the selection from the remaining names. The arbitration shall be conducted in Ocean County, New Jersey, and the proceedings shall be transcribed. The arbitrator shall prepare in writing and provide to the parties an award including factual findings and the reasons on which his or her decision is based. The arbitrator shall not have the power to commit errors of law or legal reasoning or to award damages not permitted hereunder. If the parties find it necessary to go to court for prejudgment relief or similar proceedings, the sole jurisdiction and venue for actions related to the subject matter hereof shall be the courts for the State of New Jersey for Ocean County or the United States District Court for the District of New Jersey. Both parties consent to the exclusive jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by New Jersey law. The arbitration award may be enforced in any court of competent jurisdiction.
(i) Interpretation. Headings are for convenience only and are not to be used in the interpretation of this Agreement. No term shall be construed in favor of, or against, a party as a consequence of a party having had a greater role in the preparation or drafting thereof, but shall be construed as if the language were mutually drafted by both parties with full assistance of counsel.
(l) Complete Agreement. This Agreement constitutes the complete and exclusive Agreement between the parties regarding the subject matter hereof, and any and all previous representations, discussions and writings are merged and superseded by this Agreement. This Agreement may be modified only by a written document signed by all the parties hereto.