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Last Updated: 2003-06-24
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 OF MJP TECHNOLOGIES, INC.
D.B.A. MJP COMPUTERS, INCLUDING ANY LICENSES DOWNLOADED TO YOU FROM
OUR WEBSITE OR OTHERWISE. MJP Computers RESERVES THE RIGHT TO CHANGE
THESE TERMS AND CONDITIONS WITHOUT PRIOR NOTICE AT ANY TIME FOR ANY
REASON, IN MJP COMPUTERS' 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 "CONTINUE" 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 MJP Computers;
(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 MJP Computers, 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. MJP Computers' silence or failure to respond to
any subsequent term, condition or proposal shall not be deemed to be
MJP Computers' acceptance or approval thereof.
2. INDEPENDENT CONTRACTORS.
Customer hereby acknowledges that this Website may be co-branded by
MJP Computers 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 MJP Computers solely based on the terms and conditions
contained herein. Retailer and MJP Computers are independent contractors,
and Retailer has no right or authority to make any representations or
warranties on behalf of MJP Computers, or to in any way commit or obligate
MJP Computers in any manner whatsoever. Retailer shall not be considered
an agent, legal representative, partner or joint venturer of MJP Computers,
and MJP Computers 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 MJP Computers,
delivery shall be made in accordance with MJP Computers' delivery
policies in effect on the date of shipment. Risk of loss to the
products shall pass from MJP Computers to Customer on shipment from
MJP Computers' facilities or, as applicable, on commencement of
download. Title to software shall remain with the applicable licensor.
MJP Computers shall not be liable for any delays in delivery beyond the
reasonable control of MJP Computers including, but not limited to,
delays caused by unavailability or shortages of the products from MJP
Computers' 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 MJP Computers has no reasonable control, and Customer shall
not hold MJP Computers liable for any failures, corruptions or delays.
4. PRICE AND PAYMENT.
Terms of payment are within MJP Computers' sole discretion, and unless
otherwise agreed to in a writing signed by MJP Computers, payment must
be received by MJP Computers prior to MJP Computers' acceptance of an
order from Customer. Payment for products may be made by credit card
or some other prearranged payment method accepted by MJP Computers
unless MJP Computers has agreed to credit terms in writing. No order
shall be binding upon MJP Computers until accepted by MJP Computers.
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 MJP Computers. Customer is responsible for sales and all
other taxes associated with the order, except for MJP Computers' franchise
taxes and taxes on MJP Computers' net income. MJP Computers may add
taxes and shipping charges to invoices or payment requirements. Customer
shall indemnify and hold MJP Computers 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. MJP Computers, at its
option, may at any time, separately bill Customer for any taxes not
included in MJP Computers' invoice or otherwise paid for by Customer
and Customer shall pay such taxes, or in lieu thereof, shall provide MJP
Computers with a tax exemption certificate acceptable to the applicable
taxing authorities. If any such certificate furnished to MJP Computers
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 MJP Computers' 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 MJP Computers. These warranties and technical support may vary
from product to product. Disclaimers of warranties are provided in more
detail below.
6. WARRANTY.
Unless otherwise states, it is understood that MJP Computers 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 MJP Computers, unless otherwise stated. Retailers or any third-party
dealers, are not agents of MJP Computers and MJP Computers 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 MJP COMPUTERS 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 MJP COMPUTERS 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 MJP COMPUTERS 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. MJP COMPUTER 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 MJP COMPUTERS.
7. RETURN POLICY.
MJP Computers offers a return policy on selected items based on
manufacturer return policies. MJP Computers' return policy
can be accessed online.
8. EXPORT.
All products sold by MJP Computers 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
MJP Computers 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
MJP Computers, 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,
MJP Computers' advertising, website or any purchase related to any
of the foregoing may, at MJP Computers' sole option, and only upon
the exercise of that sole option by MJP Computers, be resolved
exclusively and finally by binding arbitration administered by the
Ventura Center for Dispute Settlement (VCDS) under its Code of Procedure
then in effect (available via the telephone at 1-805-650-9202). The
arbitration will be limited solely to the dispute or controversy between
Customer and MJP Computers. 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 VCDS at 4475 Market Street Suite C, Ventura, CA 93003-7756.
The arbitration hearing, if any, shall take place in any fashion necessary
as deemed reasonable by MJP Technologies, Inc.. 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 State of
California. In the event that more than one claim, dispute or other matters
in question shall be in existence at the same time, MJP Computers 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 MJP Computers 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 MJP Computers 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. MJP Computers has the sole discretion to
decide whether or not any such claims, disputes and other matters shall
be submitted for arbitration. If MJP Computers 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, MJP
Computers shall file a notice of demand for arbitration with the VCDS
and with Customer. In any event that MJP Computers elects not to arbitrate,
the claim shall be litigated in the Superior Court of California, County of Ventura.
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 MJP Computers 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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