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.com.
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 Prices are exclusive of all federal, state,
local, or other government taxes, fees, or charges now in force or enacted
in
the future. 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. SHIPMENT Any stated ship date is an approximation only. 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 States or Canada 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. 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 Buyer agrees 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
rate of either
one and one-half percent (1.5%) per month or the highest legal
interest rate, whichever is lower.
7. SECURITY INTEREST Motion reserves a purchase money security
interest in the Products sold and the proceeds thereof, in the amount
of the purchase
price. In the event of your default in any of your obligations
to Motion, Motion will have the right to repossess the Product sold hereunder
without
liability to you. This security interest will be satisfied by payment
in full. A copy of the invoice may be filed with appropriate authorities
at
any time as a financing statement and/or chattel mortgage. On request
of Motion, you agree to execute financing statements and other instruments
that Motion may request if needed to perfect Motion's security
interest.
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 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 [HYPERLINK]. 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,
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 DOLLAR AMOUNT PAID BY YOU FOR
THE PRODUCTS
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 AND NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS LIMITATION OF LIABILITY,
HOWEVER, WILL NOT APPLY TO CLAIMS FOR PERSONAL INJURY. SOME STATES
OR COUNTRIES
DO NOT ALLOW A LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS
OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES
FOR CONSUMER
PRODUCTS. IN SUCH STATES OR COUNTRIES, SOME EXCLUSIONS OR LIMITATIONS
CONTAINED HEREIN MAY NOT APPLY TO YOU.
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 States or Canada. The Product may be subject to export
laws and other regulations in the United States 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. GENERAL
(a) The state or federal courts sitting in Travis County, Texas
shall have exclusive jurisdiction and venue over any dispute arising
out of this
agreement and sale, and you hereby consent to the jurisdiction
of such courts.
(b) The terms and conditions set forth herein and any applicable
software license(s) comprise the entire agreement between Motion
and you regarding this subject matter, and may be modified only in a
writing signed
by authorized officers of both parties.
(c) This Agreement may not be modified, supplemented, qualified,
or interpreted by any trade usage or prior course of dealing not
made a part of the Agreement by its express terms.
(d) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity of this Agreement as a whole
and any such
provision should be enforced by authorities, and reconstructed
if need be, to apply to the maximum extent allowable under applicable
law.
(e) You hereby acknowledge that you have not entered into this
Agreement in reliance upon any warranty or representation by any person
or entity
except for the warranties or representations specifically described
herein.
(f) The failure by either party to enforce at any time any of the
provisions of this Agreement, to exercise any election or option
provided herein, or to require at any time the performance of the other
of any of
the provisions herein will not in any way be construed as a waiver
of such provisions.
(g) Reasonable attorneys' fees and costs will be awarded to the
prevailing party in the event of litigation involving the enforcement
or interpretation
of this Agreement.
(h) The section headings used herein are for convenience only and
shall not be given any legal import.