PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE.
This Agreement contains the terms and conditions that apply to your purchase from ExcessUPS.com Inc., a Canadian Corporation ("ExcessUPS", "our" or "we") that will be provided to you ("Customer") on orders for refurbished UPS systems and/or other products and/or services. By accepting delivery of the refurbished UPS systems, other products and/or services and support described on the invoice, Customer agrees to be bound by and accepts these terms and conditions.
THESE TERMS AND CONDITIONS APPLY UNLESS THE CUSTOMER HAS SIGNED A SEPARATE PURCHASE AGREEMENT WITH EXCESSUPS, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN.
These terms and conditions are subject to change without prior written notice at any time, in ExcessUPS's sole discretion.
1. Other Documents. Other than as specifically provided in any separate formal purchase agreement between Customer and ExcessUPS.com, these terms and conditions may NOT be altered or amended by the use of any other document(s). Any attempt to alter or amend this document or to enter an order for product(s) or services and support that are subject to altered terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both Customer and ExcessUPS.com.
2. Governing Law. THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE DEEMED TO HAVE BEEN MADE IN THE PROVINCE OF ONTARIO AND SHALL BE CONSTRUED AND INTERPRETED ACCORDING TO THE LAWS OF THE PROVINCE OF ONTARIO AND THE APPLICABLE LAWS OF CANADA. THE PARTIES HEREBY AGREE TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE PROVINCE OF ONTARIO.
3. Payment Terms; Orders;. Terms of payment are within ExcessUPS's sole discretion, payment must be received by ExcessUPS prior to ExcessUPS's acceptance of an order. Payment for the products and services may be made by credit card, PayPal, Money Order or some other prearranged payment method. ExcessUPS may invoice parts of an order separately. Orders are not binding upon ExcessUPS until accepted by ExcessUPS. Any quotations given by ExcessUPS will be valid for the period stated on the quotation.
4. Shipping Charges; Taxes. Separate charges for shipping and handling will be shown on the invoice(s). Unless Customer provides ExcessUPS with a valid and correct tax exemption certificate applicable to the product ship-to location prior to ExcessUPS's acceptance of the order, the Customer is responsible for goods and services tax, sales and all other taxes associated with the order, however designated, except taxes on ExcessUPS's net income. If applicable, a separate charge for taxes will be shown on the invoice. Customers residing in the United States of America are exempt from paying Canadian taxes.
5. Title; Risk of Loss. Title to products passes from ExcessUPS to Customer on shipment from ExcessUPS's facility. Loss or damage that occurs during shipping is ExcessUPS's responsibility. Ship dates are estimates only. ExcessUPS.com is not liable for delays in shipment or failure to ship by the estimated ship date.
6. Warranties. THE LIMITED WARRANTIES APPLICABLE TO EXCESSUPS-PRODUCTS ARE INCLUDED IN THE DOCUMENTATION PROVIDED WITH THE PRODUCTS AND CAN ALSO BE LOCATED ONLINE ATWWW.EXCESSUPS.COM. THERE ARE NO WARRANTIES FOR SERVICES. EXCESSUPS MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN EXCESSUPS'S APPLICABLE WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE. ANY SUCH WARRANTIES WILL BE EFFECTIVE, AND EXCESSUPS WILL BE OBLIGATED TO HONOUR ANY SUCH WARRANTIES, ONLY UPON EXCESSUPS'S RECEIPT OF PAYMENT IN FULL FOR THE PRODUCT TO BE WARRANTED.
EXCESSUPS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCESSUPS'S RESPONSIBILITY FOR WARRANTY CLAIMS IS LIMITED TO REPAIR AND REPLACEMENT AS SET FORTH IN EXCESSUPS'S APPLICABLE WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE. EXCESSUPS RESERVES THE RIGHT TO MODIFY ITS WARRANTY AT ANY TIME, IN ITS SOLE DISCRETION.
SOME PROVINCES DO NOT PERMIT THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS IN CONSUMER TRANSACTIONS. THEREFORE THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU.
7. Return Policies. Under ExcessUPS's "Complete Satisfaction Return Policy", end-user Customers who buy products directly from ExcessUPS may return them to ExcessUPS up to 15 days after you receive them for a refund of the product purchase price if already paid. You must prepay return shipping charges and insure the shipment or accept the risk of loss or damage during shipment and the refund credit will not include any shipping and handling charges shown on your invoice, and will be subject to a fifteen percent (15%) restocking fee, unless otherwise prohibited by law. ExcessUPS's "Complete Satisfaction Return Policy" does not apply to ExcessUPS products that are sold AS IS, with no warranty express or implied. ExcessUPS's "Complete Satisfaction Return Policy" can be found online at www.ExcessUPS.com or on request.
8. Exchanges. From time to time, ExcessUPS may, in its sole discretion, exchange products or portions of a product. Any exchanges will be made in accordance with ExcessUPS's exchange policies in effect on the date of the exchange.
9. Products. ExcessUPS continually upgrades and revises its products and service offerings to provide ExcessUPS customers with new choices. ExcessUPS may revise and discontinue products at any time without prior notice to customers. ExcessUPS will ship products that have the functionality and performance of the products ordered, but changes between what is shipped and what is described in a specification sheet or catalogue are possible. Spare parts may be new or reconditioned.
10. Limitation of Liability. EXCESSUPS.COM (INCLUDING EXCESSUPS'S PARENTS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE, LOST OR CORRUPTED DATA OR SOFTWARE, PRODUCTS SOLD THROUGH EXCESSUPS.com OR THE PROVISION OF SERVICES OR SUPPORT. EXCESSUPS WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT OR WEAPONS SYSTEMS. EXCESSUPS WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS, OR OTHER INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN.
CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES, EXCESSUPS IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PURCHASE OF PRODUCTS AND/OR SERVICES UNDER THIS AGREEMENT.
THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM).
NEITHER EXCESSUPS NOR CUSTOMER MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THIS AGREEMENT MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION HAS ARISEN, OR IN THE CASE OF NONPAYMENT, MORE THAN EIGHTEEN (18) MONTHS FROM THE DATE OF LAST PAYMENT.
SOME PROVINCES DO NOT ALLOW THE EXCLUSION OF LIMITATION OF (i) INCIDENTAL OR CONSEQUENTIAL DAMAGES OR (ii) IMPLIED WARRANTIES OR CONDITIONS, SO THE ABOVE EXCLUSIONS MAY NOT APPLY.
11. Dispute Resolution.
A. Acknowledgments Customer acknowledges that ExcessUPS possesses valuable confidential and proprietary information, including trade-marks and business practices, that would be damaging to ExcessUPS if revealed in open court. The parties further acknowledge and agree that it is preferable to resolve all disputes between them confidentially, individually, and in an expeditious and inexpensive manner. The parties accordingly acknowledge and agree that private dispute resolution is preferable to court actions.
B. Good Faith Negotiation. Before commencing any arbitration in the manner set out in Subsection 11(c) below, the parties shall first attempt to resolve any dispute or differences between them by way of good faith negotiation. The good faith negotiation shall commence by each party communicating their position regarding the complaint, claim, dispute, or controversy to the other party, and how the parties should resolve the dispute. The parties shall then make good faith efforts to negotiate a resolution of the claim, dispute, or controversy. Neither party shall commence any arbitral proceedings unless and until the good faith negotiation fails.
C. Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS CAPABLE IN LAW OF BEING SUBMITTED TO BINDING ARBITRATION) AGAINST EXCESSUPS, its agents, employees, officers, directors, successors, assigns or affiliates (collectively for purposes of this paragraph, "EXCESSUPS") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future, (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), ExcessUPS's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE NATIONAL ARBITRATION FORUM ("NAF") under its Code of Procedure and any specific procedures for the resolution of small claims and/or consumer disputes then in effect (available via the Internet athttp://www.arb-forum.com, or via telephone at 1-800-474-2371). The arbitration will be limited solely to the dispute or controversy between Customer and ExcessUPS. Any award of the arbitrator(s) 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 and claims may be filed with the NAF at P.O. Box 50191, Minneapolis, MN 55405, or by e-mail at email@example.com, or by online filing at http://www.arb-forum.com.
D. Injunctive Relief and Provisional Relief in Aid of Arbitration. Notwithstanding the provisions in this Section 11 or anywhere else in this Agreement, ExcessUPS shall have the right to seek and obtain any provisional or interim relief from any court of competent jurisdiction to protect its trade-mark or property rights or to preserve the status quo pending good faith negotiation and/or arbitration.
12. Applicable Law; Not For Resale. Customer agrees to comply with all applicable laws and regulations of the various provinces and of Canada. Customer agrees and represents that it is buying for its own internal use only, and not for resale. ExcessUPS has separate terms and conditions governing resales.
13. Exports. The Customer acknowledges that the Products licensed or sold hereunder are subject to, and Customer agrees to comply with the export control laws and regulations of Canada and the United States.
14. Service and Support. ExcessUPS will provide general service and technical support to Customer in Canada and the United States, in accordance with the then-current service and technical support policies and conditions in effect. For end-user Customers, ExcessUPS promises that its support people will attempt to handle over the telephone any problem involving ExcessUPS products. However, ExcessUPS's support people may not be able to understand or resolve any given problem. Service offerings may vary from product to product. If Customer purchased optional services and support, ExcessUPS and/or a third-party service provider will provide the optional service and support to Customer in Canada and the United States in accordance with the then-current terms and conditions in the optional service contract between ExcessUPS and/or the third-party service provider and Customer (available online at www.ExcessUPS.com or by contacting ExcessUPS at 1-866-311-1945). ExcessUPS and/or the third-party service provider may, at their discretion, revise their general and optional service and support programs and the terms and conditions that govern them. The optional services and support programs and their terms and conditions in place at the time of purchase will apply to Customer's purchase. ExcessUPS has no obligation to provide service or support until ExcessUPS has received full payment for the product or service/support contract for which service or support is requested.
15. Headings. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived there from.
16. Force Majeure. ExcessUPS shall not be liable for any delay or failure in performance caused by circumstances beyond its reasonable control.