PLEASE READ THIS DOCUMENT VERY CAREFULLY. IT CONTAINS IMPORTANT LEGAL INFORMATION RELATING TO YOUR PURCHASE OF MOTION COMPUTING PRODUCTS AND SERVICES, INCLUDING LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. BY ACCEPTING DELIVERY OF YOUR MOTION PRODUCT OR SERVICE, YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT.
1. INTRODUCTION This agreement ("Agreement") contains terms and conditions applicable to your purchase of Motion Computing, Inc. ("Motion") products and services ("Product"). If you have any questions about this Agreement, please contact Motion at info@motioncomputing.co.uk.
2. GOVERNING LAW This agreement and all sales thereunder shall be governed by the state of Texas, without regard to principles of conflict of laws.
3. PRICES AND TAXES The price of any Product is the price in force at the date and time that your order is accepted in accordance with Section 4. Motion may change the price of any Product before you place an order. Motion tries to ensure that the prices displayed on our web site are accurate but the price on your order will need to be validated as part of the acceptance procedure (see Section 4 below). Motion will inform you if a ProductÍs correct price is higher than that stated in your order and you may cancel the order and decide whether or not to order the Product at the correct price.
Prices are exclusive of all Value Added Tax or other government taxes, fees, or charges now in force or enacted in the future and all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts you will pay in addition when you are due to pay for the Product. Taxes will be indicated on the invoice; however, if any additional such tax, fee or charge is imposed by any governmental authority on, or measured by, the transaction between Motion and you, you will be responsible for such tax, fee or charge. In the event that Motion is required to pay any such tax, fee, or charge at the time of sale or thereafter, you will reimburse Motion therefor.
4. ORDERING AND SHIPMENT Motion is entitled to refuse any order placed by you. If your order is accepted, Motion will confirm acceptance to you by online electronic means (ñConfirmationî) to the email address you have given us on registration or on ordering. The order will then be fulfilled by the date set out in the Confirmation or, if the Confirmation does not contain such a date, within 30 days.
If the Product you ordered is unavailable, Motion may provide to you a substitute of an equivalent quality and price.
You undertake that all details you provide to Motion for the purpose of purchasing the Product will be correct, that the credit or debit card, or any electronic cash, which you use is your own and that there are sufficient funds or credit facilities to cover the cost of any Product ordered. We reserve the right to obtain validation of your credit or debit card details before providing you with any Product.
Any stated ship date is an approximation only and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time. In the absence of specific shipping instructions, Motion will ship by the carrier of its choice. You agree to pay all transportation charges, whether billed by the carrier or Motion. Unless otherwise specified, the Product will be shipped in standard commercial packaging. Products may be shipped to destinations in the United Kingdom only. When special packaging is requested or, in the opinion of Motion, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced. Motion continuously upgrades and modifies its products and services to provide customers with new and improved products and services. Motion may modify or discontinue products or services at any time without prior notice to customers and discrepancies between the product you receive and the respective specification sheet may occur. However, in such a case Motion will ship Products that have substantially similar or better functionality and performance. All Products contain new or equivalent-to-new parts except as expressly stated otherwise.
5. DELIVERY AND PASSAGE OF TITLE Delivery will be made F.O.B. Motion's facility. The time of delivery is the time the Product to be delivered is picked up by the carrier. Subject to Section 7, title to the Product (excluding any software, which shall remain the property of the respective licensor) shall pass to you upon shipment from Motion's facility. Loss or damage that occurs during shipping by a carrier selected by Motion is Motion's responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility.
6. PAYMENT TERMS You agree to make the payments set forth in the invoice for the Products. Unless otherwise agreed by Motion, payment must be received in full prior to acceptance of your order. For credit card payments, your credit card will be charged when your Product ships. An invoice not paid within terms is considered past due, and such invoices will be subject to a daily charge, compounded monthly, at the annual rate of 2% above the base lending rate from time to time of Barclays Bank in the UK, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7. RETENTION OF TITLE Ownership of the Product shall not pass to you until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Product.
8. RETURNS AND EXCHANGES Products that are defective may be repaired or replaced in accordance with Motion’s standard warranty, the terms and conditions of which will accompany your Product. Except for the foregoing, all sales are final and the Products may not be returned or exchanged for any reason.
9. SOFTWARE AND INTELLECTUAL PROPERTY All software contained within the Product is provided to you subject to the license agreement that is part of the package or shown during installation of the software. You agree to be bound by any such license by opening the package or installing and/or using the software. Any warranty related to such software shall be provided solely within such license agreement. Motion hereby retains for itself all other rights, title, and interest in and to all intellectual property in the Products sold and any products or software or other deliverable created during performance of the services, including without limitation, worldwide copyright, trade secret, patent, trademark, and any other proprietary rights.
10. WARRANTIES Motion promise that for any Product you purchase Motion has the right to sell the Product to you.
Where you are a consumer, Motion also promises the Product will comply with the description Motion has given to you; the Product will be of satisfactory quality; and the Product will be fit for any purpose for which it is commonly supplied. Where you are a business these additional warranties will not apply.
Subject to the above, any warranty associated with the Product is included in the documentation provided with the product. a copy of such limited warranty may also be found at http://www.motioncomputing.com/support/warranty_info.asp. Warranties relating to software, if any, may be found in the respective license agreement. Except for the express warranties set forth in the foregoing documents and as stated above, the products are provided "as is" and motion makes no other warranties, express or implied, including any implied warranties of merchantability, fitness for a particular purpose, non-infringement, and non-interference. Motion does not warrant that your use of the Product will be uninterrupted or error-free. any implied warranties that may be imposed by law are limited in duration to the limited warranty period.
11. LIMITATION OF LIABILITY Under no circumstance shall Motion be liable for (a) any special, incidental, indirect, or consequential damages, including but not limited to loss of data or lost profits, even if motion knew or should have known of the possibility of such damages, (b) any claim made by a third party or made by you for a third party, or (c) any amount of damages above the aggregate amount paid by you for the Product purchased hereunder. This limitation of liability applies whether damages are sought as a tort claim (including negligence and strict product liability), a contract claim, or any other claim. This limitation of liability, however, will not apply to claims for death or personal injury arising from Motion's negligence.
12. RESALE AND EXPORT You agree that you are buying the Product for your own use, and not for resale. Motion has separate terms and conditions governing resale transactions. The Product is intended for use only within the United Kingdom. The Product may be subject to export laws and other regulations in the United Kingdom or other countries, and you agree to comply with all such laws, regulations, or requirements as may apply to your receipt, export, or use of the Product. You agree to indemnify Motion for any liability resulting from your failure to comply with applicable export laws, regulations, or requirements.
13. DATA PROTECTION The following applies to any information you provide to us, for example during any registration or ordering process:
You authorise us to use, store or otherwise process any personal information which relates to and identifies you, including but not limited to your name and address, to the extent reasonably necessary to provide the services which are available through our web site by us or our sub-contractors. If you obtain or choose to buy Products through our web site then Motion may collect information about your buying behaviour and if you send us personal correspondence such as e-mails or letters then Motion may collect this information into a file specific to you (together, the various purposes set out in this paragraph and in our privacy policy shall be known as "the Purposes"). All such information collected by us shall be referred to in these terms and conditions as "Personal Information".
You must ensure that the Personal Information you provide is accurate and complete and that all ordering or registration details (where applicable) contain your correct name, address and other requested details. For more information about how Motion deals with your Personal Information, please read Motion's privacy policy.
By accepting these terms and conditions, you agree to the processing and disclosure of the Personal Information for the Purposes. You also agree that the Purposes may be amended to include other uses or disclosures of Personal Information following notification to you by means of a notice on our web site, which you should check regularly. If you would like to review or modify any part of your Personal Information then you should email us at info@motioncomputing.co.uk.
14. GENERAL