PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY
THESE TERMS AND CONDITIONS OF PURCHASE ARE APPLICABLE TO ALL ORDERS AND PURCHASES OF HARDWARE AND SOFTWARE PRODUCTS (“PRODUCTS”) MADE BY YOU (“CUSTOMER”) FROM MNJ TECHNOLOGIES DIRECT, INC. OR ANY OF ITS AFFILIATED ENTITIES (“MNJ”). BY ORDERING THE PRODUCTS, CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY CUSTOMER ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.
IF CUSTOMER HAS ENTERED INTO A MASTER SERVICES AGREEMENT OR STATEMENT OF WORK WITH MNJ OR ANY OF ITS AFFILIATED ENTITIES, THE TERMS OF THE MASTER SERVICES AGREEMENT OR STATEMENT OF WORK SHALL SUPERSEDE AND CONTROL OVER THE TERMS OF THIS AGREEMENT, BUT ONLY TO THE EXTENT OF ANY CONFLICT BETWEEN THEM.
ANY GENERAL DESCRIPTION OR REPRESENTATION OF THE PRODUCTS AND RESULTS THEREOF POSTED ON ANY MNJ WEBSITE OR MOBILE APPLICATION DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN MNJ AND CUSTOMER.
Important Information About These Terms and Conditions
These Terms and Conditions constitute a binding contract between Customer and MNJ and are referred to herein as either “Terms and Conditions” or this “Agreement”. Customer accepts these Terms and Conditions by making a purchase from or placing an order with MNJ or shopping on any MNJ Website (each, a “Site”) or otherwise requesting Products (the “Products”). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on a Site at the time Customer places an order will govern the order in question, unless otherwise agreed in writing by MNJ and Customer.
Customer consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting MNJ. In addition, Internet connectivity requires access services from an Internet access provider. Contact your local access provider for details. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order are rejected, and will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice. This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and, with the exception of any Master Services Agreement that may exist between the parties, replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
THESE TERMS AND CONDITIONS, ANY STATEMENTS OF WORK, THE SERVICES HEREUNDER AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY LITIGATION WILL BE BROUGHT EXCLUSIVELY IN COOK COUNTY, ILLINOIS, AND CUSTOMER CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided MNJ under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
Title; Risk of Loss
If Customer provides MNJ with Customer’s carrier account number or selects a carrier other than a carrier that regularly ships for MNJ, title to Products and risk of loss or damage during shipment pass from MNJ to Customer upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from MNJ to Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s), and Customer’s rights therein are contained in the license agreement between such licensor(s) and Customer.
Payment; Interest and Late Fees
Orders are not binding upon MNJ until accepted by MNJ. Customer agrees to pay the total purchase price for the Products plus all applicable taxes. Customer also agrees to pay the costs of shipping (to the extent shipping is not prepaid by Customer), including shipping charges that are billed to MNJ as a result of using Customer’s carrier account number. Terms of payment are within MNJ’s sole discretion. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by MNJ. MNJ, or any of its Affiliates on behalf of MNJ, may issue an invoice to Customer. MNJ may invoice Customer separately for partial shipments. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law. Customer will pay for, and will indemnify and hold MNJ and its Affiliates harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with any Products purchased. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide MNJ with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for the payment of all of MNJ’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees. In addition, if payments are not received as described above, MNJ reserves the right to suspend Services until payment is received. Customer hereby grants to MNJ a security interest in the Products to secure payment in full. Customer authorizes MNJ to file a financing statement reflecting such security interest.
Sales Being Exported Outside of the U.S.
For any products being purchased for purposes of export, Customer must obtain from the federal government, state government, and any other applicable governmental entity any and all required export or other documentation before shipping to a foreign country. Customer agrees that it will not divert, use, export or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. Many manufacturers’ warranties for exported goods vary and may even be null and void if goods purchased are exported outside the United States. Customer should inquire further regarding any questions of product exportation. MNJ shall have no liability for the loss of any warranty or any other coverage, or for any import or export duties or taxes, due to Customer’s export of any products purchased from MNJ.
Customer understands that MNJ is not the manufacturer of the Products purchased by Customer hereunder and the only warranties offered are those of the manufacturer; neither MNJ nor its Affiliates makes any warranty. In purchasing the Products, Customer is relying on the manufacturer’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Products that may be provided by MNJ or its Affiliates, on the Sites or otherwise. MNJ AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY. Customer expressly waives any claim that it may have against MNJ or its Affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right or claim to indemnification from MNJ or its Affiliates against any such Claim made against Customer by a third party. Customer acknowledges that no employee of MNJ or its Affiliates is authorized to make any representation or warranty on behalf of MNJ or any of its Affiliates that is not in this Agreement.
MNJ makes no warranties to the Customer and the Customer hereby acknowledges that MNJ makes no warranties in regard to the applicability of all laws and regulations affecting, without limitation the manufacture, performance, sale, packaging and labelling of the Products which are in force within the Customer’s territory.
Customer further acknowledges and agrees that MNJ makes no representations, warranties or assurances that the Products are designed for or suitable for use in any high risk environment, including but not limited to aircraft or automobile safety devices or navigation, life support systems or medical devices, nuclear facilities, or weapon systems, and Customer agrees to indemnify MNJ in connection with any such use of the Products. Customer further agrees to review and comply with the manufacture’s disclaimers and restrictions regarding the use of the Products in high risk environments.
Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted while using the Products. MNJ, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM ITS USE OF THE PRODUCTS.
MNJ will not be responsible for and no liability shall result to MNJ or any of its Affiliates for any delays in delivery or in performance which result from any circumstances beyond MNJ’s reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, pandemic, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion dates provided by MNJ or any purported deadlines contained in an order or any other document are estimates only.
Pricing Information; Availability Disclaimer
MNJ reserves the right to make adjustments to pricing and Product offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Product availability. Therefore, MNJ cannot guarantee that it will be able to fulfill Customer’s orders.
Any credit issued by MNJ to Customer for any reason must be used within two (2) years from the date that the credit was issued and may only be used for future purchases of Products. Any credit or portion thereof not used within the two (2) year period will automatically expire.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL MNJ, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF MNJ HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY MNJ OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY TO CUSTOMER OF MNJ OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF MNJ AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER SHALL BE LIMITED TO, AND MAY NOT EXCEED, THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM; OR (B) $50,000.00.
MNJ allows Customer returns based on the policies of the original product manufacturer. Software is not returnable if the packaging has been opened. If software was distributed electronically, it is not returnable if the licenses were downloaded / issued. For additional information see MNJ’s full Product Return Policy at the following link: www.mnjtech.com/return-policy/ .Customers should contact MNJ Customer Relations at firstname.lastname@example.org to initiate a return or for additional information.
Provisions Related to Configuration and Custom Imaging
If in connection with the provision of Products, Customer desires to have MNJ provide pre-delivery configuration or installation of custom software images, Customer will be required to execute an Installation Indemnity Agreement, a form of which is provided at www.mnjtech.com/indemnity-agreement/.
MNJ may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or assign the right to receive payments, without Customer’s consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of MNJ. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between MNJ and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.
Version dated: May 13, 2022