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 AN ARBITRATION CLAUSE.
This Agreement contains the terms and conditions that apply to your ("Customer") purchase from Dell Financial Services LLC ("DFS") for the used computer systems and/or related products ("Products") sold by DFS pursuant to this Agreement. By placing an order for the Products, 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 DFS FOR THE PURCHASE OF USED PRODUCTS, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN.
These terms and conditions are subject to change without prior written notice at any time, at DFS' sole discretion.
1. Products. ALL PRODUCTS SOLD BY DFS PURSUANT TO THIS AGREEMENT ARE USED, AND CONTAIN USED PARTS.
2. Product Use: Servers, Storage Units, Networking Solutions and Enterprise Parts are classified as Class A equipment by the Federal Communications Commission (FCC) and are intended for use in a business (non-residential) / commercial environment. Residential use is prohibited.
3. Payment Terms; Orders; Late Charges. Terms of payment are within DFS' sole discretion, and unless otherwise agreed to by DFS, payment must be received by DFS prior to DFS' acceptance of an order. Payment for the Products will be made by approved credit card,Dell Preferred Account ( DPA), check, wire transfer, or some other prearranged payment method unless credit terms have been agreed to by DFS. Invoices are due and payable within the time period noted on the invoice, measured from the date of the invoice. Customer agrees to pay as a late charge, an amount equal to the lesser of 1-1/2% per month or the highest rate allowed by law of the amount then due until received by DFS. Orders are not binding upon DFS until accepted by DFS.
4. Shipping Charges; Taxes and Other Related Fees. Separate charges for shipping and handling will be charged on all purchases. The Customer is responsible for sales and all other taxes and fees associated with the purchase.
5. Title; Risk of Loss. Title to the Products passes from DFS to Customer on shipment from DFS' facility. Loss or damage that occurs during shipping by a carrier selected by DFS is DFS' responsibility. Loss or damage that occurs during shipping by a carrier selected by Customer is Customer's responsibility.
6. Export. For the purposes of this section, the use of 'export' shall mean the transfer of Products outside of the continental United States. Customer acknowledges that the exportation of Products is subject to compliance under the United States Export Control Administration Act of 1979 and the Export Administration Act of 1985, as they may be amended from time to time, and the rules and regulations promulgated thereunder (collectively, the "Act"). If Customer exports the Products, Customer agrees to comply with the terms and restrictions of the Act, along with any antiboycott laws and regulations related to the Products. Customer confirms that it will not unlawfully export or re-export the Products, directly or indirectly, to (i) any countries that are subject to U.S. export restrictions or (ii) any end user who has been prohibited from participating in U.S. export transactions by any agency of the U.S. government. Customer warrants that the Products will not be used to develop or produce weapons of mass destruction or sold to an end user who, Customer knows or has reason to know, may utilize the Products directly or indirectly in connection with weapons of mass destruction or nuclear activities listed in U.S. EAR 778.3(b)(1), (2) & (3), whether or not the item is specifically designed or modified for such activities. If Customer is not the ultimate end user, Customer agrees to screen the reliability of each end user so that the Products will not be used in a manner which is prohibited. Upon our request, Customer agrees to execute, acknowledge, deliver and to cause to be duly filed all such further instruments and documents and take actions as we may from time to time reasonably request to assure that the necessary export requirements have been met. If required, Customer will obtain prior authorization for export of the Products in accordance with the Export Administration Regulations of the Department of Commerce. If applicable, Customer will be responsible for assuring that the appropriate import permits and licenses with respect to the Products, including any markings needed for import are obtained. Customer shall indemnify and hold DFS harmless against any claims, damages or losses incurred as a result of Customer's failure to comply with the Act or terms contained herein. DFS reserves the right to terminate any sale if Customer fails to comply with the Act or the terms contained herein.
7. Software. DFS has no right, title, or interest in any software that may be contained in or a part of the Products. Title to software will remain with the applicable licensor(s). Any rights that Customer may have with respect to the software shall arise only pursuant to license agreements ("Licenses") between Customer and the licensor(s), which Licenses may be contained within the packaging associated with the Products. Customer agrees to use all software in accordance with the Licenses.
8. Warranties. THE LIMITED WARRANTIES APPLICABLE TO HARDWARE PRODUCT SOLD ON DELLREFURBISHED.COM CAN BE FOUND HERE
9. Return Policies. Subject to the following requirements, Customer may return the Products purchased from DFS pursuant to this Agreement within thirty (30) days from the date of shipment and obtain a credit or refund of the purchase price paid less shipping and handling and any applicable restocking fees (as detailed in Section 10) to the credit card account used to purchase the Products or if payment was made by check or wire transfer, by check.
To return the Products, Customer must call DFS at (800) 891-8595 to receive a Return Material Authorization. Customer must ship the Products to DFS in their original packaging and insure the shipment or accept the risk of loss or damage during shipment, all of which shall be at Customer's expense. The original sales invoice(s) must accompany the returned Products. To be eligible for return, the Products must be in the same condition as when shipped to Customer and all of the manuals, diskettes, power cords, software and other items included with the Products must also be returned. No returns will be allowed for Products that are damaged while in Customer's possession or control. FROM TIME TO TIME, DFS MAY, IN ITS SOLE DISCRETION, EXCHANGE PRODUCTS OR PORTIONS OF A PRODUCT.
NOTE: Before you ship the product(s) to us, make sure to back up the data on the hard drive(s) and any other storage device(s) in the product(s). Remove any confidential, proprietary, or personal information and removable media such as floppy disks, CDs, or PC Cards. We are not responsible for any of your confidential, proprietary, or personal information; lost or corrupted data; or damaged or lost removable media.
10. Restocking Fees. Unless the product is defective (as reasonably determined by DFS) or the return is a direct result of a DFS error, DFS will charge a restocking fee of 15% of the purchase price paid.
11. Limitation of Liability. DFS DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN THIS AGREEMENT, INCLUDING ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE. DFS WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT 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. DFS' SOLE LIABILITY FOR ANY CLAIMS, WHETHER BASED IN CONTRACT OR TORT, AT LAW OR IN EQUITY, FOR ANY LOSS OR DAMAGES ARISING, RESULTING FROM, OR CONNECTED WITH THE PRODUCTS, THE DFS DELL REFURBISHED WEB SITE AND THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF THE ACTUAL AMOUNT OF SUCH LOSS OR DAMAGES OR THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE CLAIM.
12. Applicability of Limitations on Warranties and Remedies to Certain Customers. Certain laws do not allow limitations on implied warranties, or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations, may not apply and Customer may have additional rights to those contained herein.
13. Applicable Law; Not For Resale. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND FEDERAL LAW, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. Customer agrees to comply with all applicable laws and regulations of the various states and of the United States, including all applicable government export laws and regulations including those which apply to export of data. Customer agrees and represents that it is buying for its own internal use only, and not for resale.
14. Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this Agreement or to enter an order for Products which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by both Customer and DFS.
15. Headings. The section headings used herein are for convenience of reference only and do not form a part of this Agreement, and no construction or inference shall be derived therefrom.
16. Severability. If any provision of this Agreement shall be illegal, invalid or unenforceable to any extent under applicable law, such provision shall be fully severable. The remainder of this Agreement will remain in full force and effect and will not be terminated.
17. Arbitration. Either party to this Agreement may choose to have any dispute, claim or controversy arising from or relating to this Agreement resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association. If such rules conflict with this arbitration agreement section, however, then the terms of this arbitration agreement section shall control. This arbitration agreement between Customer and DFS is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act at 9 U.S.C. Section 1, et seq. Judgment upon the award rendered may be entered in any court having jurisdiction. Any arbitration award in excess of $100,000 made pursuant to this arbitration agreement section may be appealed by the party against which the award is made. Such appeal will be a de novo arbitration proceeding before three arbitrators. The parties agree and understand that (i) they may choose arbitration instead of litigation to resolve disputes, (ii) all disputes arising under case law, statutory law, and all other laws including, but not limited to, all contract, tort, and property disputes, may be subject to binding arbitration in accord with this Agreement and (iii) the arbitrator shall have all powers provided by law and this Agreement, except for powers limited or prohibited by this Agreement. The arbitrator shall not have any authority however, to award damages or penalties in contravention to the provisions of this Agreement. No class action or request for relief may be brought under this arbitration agreement. Customer agrees that it shall not have the right to participate in arbitration or in court proceedings as a representative or a member of any class of claimants pertaining to any claim arising from or relating to this Agreement. Notwithstanding anything herein to the contrary, we retain an option to use judicial or non-judicial relief to recover the Products or to enforce our security interest in the Products, to enforce the monetary obligation secured by the Products or to foreclose on the Products. Such judicial relief would take the form of a lawsuit. The institution and maintenance of any action for judicial relief in a court to foreclose upon any Products, to obtain a monetary judgment or to enforce this Agreement, shall not constitute a waiver of the right of any party to compel arbitration regarding any other dispute or remedy subject to arbitration in this Agreement, including the filing of a counterclaim in a suit brought by DFS pursuant to this provision.CUSTOMER UNDERSTANDS AND AGREES THAT IN ARBITRATION: YOU GIVE UP RIGHTS TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL; YOUR ABILITY TO COMPEL OTHER PARTIES TO PRODUCE DOCUMENTS OR BE EXAMINED IS MORE LIMITED THAN IN A LAWSUIT; AND, YOUR RIGHTS TO APPEAL OR CHANGE ANY ARBITRATION AWARD IN ANY COURT ARE STRICTLY LIMITED.
18. Other Product Information. Refurbished Dell computers, Dell used computer products and supplies limited to stock on hand. No rain checks. Pricing, specifications, and availability valid in U.S. only and subject to change without notice. Taxes, fees, shipping, handling and any applicable restocking charges, other than free Dell shipping offers, if applicable, are extra and vary. Special offers on refurbished Dell computers not necessarily combinable. Dell deals and Dell discounts cannot be retroactively applied. For Dell Financial Services (DFS) LLC. purchases only. The DFS site and special offers on refurbished Dell computers and used Dell computers contained herein valid only for end users and not resellers and/or online computer auctions. DFS cannot be responsible for pricing or other errors, and reserves the right to cancel orders arising from such errors. Due to used Dell computer supplies being limited to stock on hand, DFS reserves the right to cancel any used Dell computer equipment orders in which the payment method used is not authorized within 2 business days of the order processing. Your Dell order is subject to cancellation by DFS, at DFS' sole discretion. If orders for Dell computer systems are cancelled by DFS, all Dell computer equipment, Dell computer parts and related item(s) will be returned to stock.