Central Utah Telephone, Inc. TERMS OF SALE
1.SCOPE AND APPLICATION
1.1
THESE TERMS OF SALE (“TERMS”) CONSTITUTE A BINDING LEGAL CONTRACT BETWEEN (A) US, CENTRACOM, PO BOX 7, FAIRVIEW, UT 84629, THE SELLER (WITH REFERENCES TO “
THESE TERMS APPLY TO ALL OFFERS, SALES AND PURCHASES OF OUR PRODUCTS (“PRODUCTS”) OR ACCESS RIGHTS TO SERVICES WE DIRECTLY PROVIDE (INCLUDING, WITHOUT LIMITATION, EXTENDED DOWNLOAD SERVICE OR REGISTRATION BACKUP SERVICE) (“CENTRACOM SERVICES”),WHICH OCCUR EITHER (A) THROUGH THE ONLINE STORE ON WHICH WE POST THESE TERMS, OR (B) THROUGH ANY OTHER MEANS THROUGH WHICH WE ENGAGE IN THE SALE OF PRODUCTS, SUCH AS BUT NOT LIMITED TO ORDERS BY PHONE, IN PERSON OR BY VISITING THIS ONLINE STORE, YOU SIGNIFY YOUR ACCEPTANCE OF THIS AGREEMENT (“CENTRACOM COMMERCE SOLUTION”).
1.2
We value our relationship with you and consider our approach to
1.3
ALL ORDERS ARE SUBJECT TO YOUR CONSENT TO ANY APPLICABLE AGREEMENT OR USAGE TERMS IS DELIVERED WITH, INCLUDED IN, OR PRESENTED IN CONNECTION WITH YOUR PRODUCT. If you do not agree to these terms once you see them, do not accept them and contact customer service.
1.4
When a customer enters a brick-and-mortar store, the customer is bound by the store rules in effect on the date of his or her visit. Similarly, you are bound by the version of these Terms in effect on the date of each order you place through this CentraCom Commerce Solution. These Terms may change from time to time, so please review them upon submission of each order, even if you have reviewed them before.
1.5
ALL ACCEPTED ORDERS ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE RETURNS POLICY APPLICABLE TO YOUR PURCHASE.
2.
ORDER PLACEMENT AND ACCEPTANCE; ONLINE CONTRACTING
2.1
We attempt to describe the Products and Services available for purchase through the our CentraCom Commerce Solution as accurately as possible. However, we do not warrant that the prices, quotations, anticipated delivery dates, and descriptions made or referred to on the CentraCom Commerce Solution or any related websites are accurate, complete, reliable, current, or error-free. The prices, quotations and descriptions made on the CentraCom Commerce Solution are subject to availability, do not constitute an offer and may be withdrawn or revised at any time prior to our express Acceptance of your order (as described below).
2.2
All Product specifications, illustrations, drawings, particulars, dimensions, performance data and other information on the CentraCom Commerce Solution or related pages, or otherwise made available by us or a Product manufacturer or publisher, are intended to represent no more than a general illustration of the Products and do not constitute a warranty or representation by us that the Products will conform with the same. You must refer to the manufacturer’s specifications or warranty documentation to determine your rights and remedies in this regard.
2.3
While we make every effort to ensure that items appearing on the CentraCom Commerce Solution are available, we cannot guarantee that all items are in stock or immediately available when you submit your order. We may reject your order (without liability) if we are unable to process or fulfill it. If this is the case, we will refund any prior payment that you have made for that item.
2.4
An order submitted by you only constitutes an offer by you to us to purchase Products subject to these Terms at the price and on the terms stated in the order, and is subject to our subsequent Acceptance (as defined below), irrespective of whether the button or link you press or activate to submit your order to us includes words such as “complete order” or otherwise indicates that it is the final step in completion of your order. Any order confirmation email received by you prior to our Acceptance shall constitute an acknowledgement of our receipt of your offer only, and not an acceptance of your offer.
2.5
You acknowledge and agree that if you are placing an order through a website, by clicking or activating the button or hyperlink to submit your order, you are placing a legally binding offer. You consent to: (i) the use of electronic communications in order to enter into contracts and place orders with us; and (ii) the electronic delivery of notices, policies and records of transactions initiated or completed by you online. You have the right to withdraw your consent to electronic contracting and to electronic delivery, but if you do, we may cancel your order and/or your access to CentraCom Services and Third Party Services. If you do not consent to receive any notices electronically, you must stop using the CentraCom Commerce Solution.
2.6
Our acceptance of your order only occurs at such time that we have both (a) dispatched your Product order and/or provided you with access to CentraCom Services, and (b) received payment of the purchase price of your order through settlement of funds via your provided credit card or other payment method (“Acceptance“). We may cancel your order at any time and for any lawful reason prior to Acceptance. Prior to Acceptance, an automatic e-mail acknowledgement of your order may be generated. Please note that any such automatic acknowledgement does not constitute a formal acceptance of your order.
2.7
We may keep records of orders received, acknowledgements, acceptances and other contract records after Acceptance for a period not to exceed the maximum period permitted by law. We may be able to provide you with copies on written request; however you must make sure you print a copy of all such documents and these Terms for your own records.
2.8
If we have cause to believe that you are unable to pay your debts as they fall due, you fail to pay any amount by the due date or breach any of these Terms, we believe you have engaged in fraud or criminal activity in connection with your use of the CentraCom Commerce Solution, or we are unable to process payment to the payment method you provided with your offer, then, without prejudice to any of our other rights, we may do any or all of the following: (a) stop any Products in transit to you; (b) suspend further deliveries of Product if on an ongoing basis; (c) stop or suspend provision of CentraCom Services; (d) cancel or revoke issues Service Use Rights for Third Party Services; (e) cancel any automatic renewal plan in which you have elected to participate; and/or (f) cancel any and all other contracts between us and you.
3.
PRICING AND PAYMENT TERMS
3.1
Prices do not include shipping and handling, expedited service, or sales taxes, if applicable, which will be added to your total price. You are responsible for any shipping and handling charges and state and local sales or use taxes that may apply to your order. If the price of a Product is obviously incorrect, regardless of whether it is an error in a price posted on the CentraCom Commerce Solution or otherwise communicated to you, then we reserve the right, at our sole discretion, to cancel your order and refund to you the amount that you paid, regardless of how the error occurred.
3.2
Prices payable for Products or CentraCom Services are those in effect at the time of Acceptance, unless otherwise expressly agreed. Prices may be indicated on the CentraCom Commerce Solution or an order acknowledgement but the authoritative price in the event of any discrepancy, is the price that is notified to you on our Acceptance through the charge placed through your selected payment method. Payment shall be made by the payment method selected during your order completion process through the CentraCom Commerce Solution. We will charge credit or debit cards on dispatch of the Product or commencement of CentraCom Services. We reserve the right to verify and/or authorize credit or debit card payments prior to Acceptance.
3.3
Except as expressly provided elsewhere in these Terms or the CentraCom Commerce Solution, payment may be taken in full notwithstanding any claim for short delivery or defects.
3.4
Where the payment is invoiced, each invoice shall be due and payable in full by the due date specified on the invoice, and if no date is specified on the invoice, within thirty (30) days of the date of invoice. If you fail to pay invoiced amount when due, we may (a) by notice declare all invoiced amounts unpaid at that date to be immediately due and payable, and (b) take all actions determined necessary and appropriate by us to collect such unpaid amount.
3.5
No counterclaim or set-off may be deducted from any payment due without our written consent. We may also take action against you for the price of Products at any time after payment has become due even though title or rights to those Products may not yet have passed to you.
3.6
If you elect to use the services of a third party payment or billing provider in connection with your purchase from us, your use of such services will be subject to the third party provider’s own terms and conditions. You may be required to create an account with such third party provider and/or provide that third party provider with your bank account or credit/debit card details. We are not responsible for, and you agree to hold us harmless from and against any liability resulting from, the acts or omissions of any third party payment or billing provider.
3.7
Any extension of credit allowed to you may be changed or withdrawn at any time. Interest shall be chargeable on overdue amounts accruing on a daily basis at the maximum amount permitted under applicable law from the due date for payment until our receipt of the full amount (whether before or after judgment). You shall indemnify us on demand against any out of pocket expenses incurred in relation to recovery of any overdue amounts.
4.
DELIVERY
4.1
We will use all commercially reasonable efforts to deliver Products in a timely manner.
4.2
The places that we deliver to are listed on the Site. Delivery shall be to a valid address within the Territory submitted by you and subject to Acceptance (“Delivery Address“). You must check the Delivery Address on any order acknowledgement or Acceptance we provide, and notify us of errors or omissions as soon as possible. We reserve the right to charge you for any extra costs arising from changes you make to the Delivery Address after you submit an order.
4.3
Where we deliver Products by installments, each installment constitutes a separate contract and any defect in any one or more installments shall not entitle you to repudiate the contract as a whole nor to cancel any subsequent installment.
4.4
Save as otherwise provided in these Terms, risk of loss of or damage to the Products passes to you for Products delivered physically, on delivery or when placed in your possession or that of any carrier or transport provided by you, whichever shall occur first.
5.
REJECTION, DAMAGE OR LOSS IN TRANSIT; PRODUCT WARRANTY, REFUND
Except as set out above and applicable to your purchase of a Product or CentraCom Service and subject to any rights you have under applicable law that cannot be excluded or limited by these Terms:
5.1
We shall not be liable and you shall not be entitled to reject Products or CentraCom Services, except for:
(a)
Damage to or loss of Products or any part thereof in transit (where the Products are carried by our own transport or by a carrier on our behalf) for which you notify us in writing of such damage or loss within 5 working days of your receipt of the Products (if damaged) or 5 working days of the anticipated delivery date of the Products (if lost);
(b)
Defects in Products (not being defects caused by any act, neglect or default on your part) for which you notify us of such defect within 10 days of your receipt of the Products.
(c)
Defective performance of CentraCom Services (not being defects caused by any act, neglect or default on your part) for which you notify us of such defective performance within 5 days of such defect becoming apparent.
5.2
We shall not be liable for any damage or losses arising from defective storage of the Products; from your negligence; improper use; or use in any manner inconsistent with the specifications or instructions.
5.3
If you refuse or fail to take delivery of Products, any risk of loss or damage to the Products shall nonetheless pass to you, and without prejudice to any other rights or remedies we have:
5.3.1
We shall remain entitled to payment in full for the Products or CentraCom Services delivered;
5.3.2
We may effect delivery by whatever means we consider appropriate or store Products at your risk, and you shall be liable for, and shall pay on our demand, all costs of Product storage and any additional costs incurred as a result of such refusal or failure to take delivery; and
5.3.3
We shall be entitled 30 days after the agreed date for delivery to dispose of Products in such manner as we determine and may set off any proceeds of sale against any sums due from you.
5.4
Except to the extent required as a result of any mandatory rights you have as a consumer under applicable law, you shall not be entitled to reject the Products in whole or in part by reason of short delivery and shall pay in full notwithstanding short delivery or non-delivery unless you notify us in writing of any claim within 7 days of the latest of the date of receipt of the relevant invoice or delivery whereupon you shall pay for the quantity actually delivered.
5.5
Where there is a shortage or failure to deliver, or any defect in or damage to a Product or Service, we may at our option:
(a)
(in the case of Product shortage or non-delivery) make good any such shortage or non-delivery and/or
(b)
in the case of failure to perform or defective performance of a Service, make good such failure or defective performance; and/or
(c)
in the case of damage or any defect(s) in the Product and in accordance with any applicable Returns Policy:
(i)
Replace or repair the Product upon you returning the Product; or;
(ii)
Refund the price paid in respect of any Products found to be damaged or defective.
However, your rights of replacement of any Products or any part or parts thereof which are found to be defective will (except where agreed otherwise) be negated or rendered void where Product or Products have not been returned together with full details in writing of the alleged defects within 10 days from the date on which such Products were delivered; and/or defects are due (wholly or partially) to mistreatment, improper use or storage or maintenance or installation, or failure to observe any instructions or other directions issued or made available by us in connection with the delivered Products.
6.
WAIVER AND LIMITATION OF LIABILITY; RISK ALLOCATION
6.1
YOU UNDERSTAND AND AGREE THAT WE ARE NOT THE OPERATOR OF
6.2
WE HAVE PRICED PRODUCTS AND CENTRACOM SERVICES AVAILABLE FOR PURCHASE FROM US UPON THE UNDERSTANDING, AND YOU HEREBY ACKNOWLEDGE THE UNDERSTANDING, THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WHETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE: (a) OUR AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY) SHALL IN NO CIRCUMSTANCES EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICABLE PRODUCTS AND/OR CENTRACOM SERVICES WHICH GIVE RISE TO SUCH LIABILITY; AND (b) NEITHER WE NOR OUR SUPPLIERS OR LICENSORS SHALL BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOSS OR INTERRUPTION OF BUSINESS) IN CONNECTION WITH YOUR USE OF THIS SITE OR YOUR PURCHASE OR USE OF ANY PRODUCT OR CENTRACOM SERVICE, HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, WARRANTY, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE WERE AWARE OR ADVSED OF THE POSSIBILITY OF DAMAGES, AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS.
6.3
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THESE TERMS LIMIT OUR LIABILITY TO YOU FOR ANY LIABILITY TO THE EXTENT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW.
6.4
You agree to defend, indemnify and hold harmless us, our subsidiaries and affiliates, and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of or related to (a) any Products purchased by you in connection with your use of the CentraCom Commerce Solution (including without limitation your use of any Third Party Service for which you purchase Service Use Rights from us), or (b) the violation of Section 8 of these Terms by you, your employees, consultants, agents, distributors, or customers.
6.5
To the fullest extent permitted by law and save where expressly set out in any License Terms or elsewhere, we shall have no liability to you in the event of the Products or CentraCom Services infringing or being alleged to infringe the proprietary rights of any third party. In the event that the Products are or may be the subject of patent, copyright, database right, registered design, trade mark or other rights of any third party, you should refer to the relevant terms of the Product manufacturer and/or licensor/owner. We shall be obliged to transfer to you only such right or title as we have.
7.
NOTICES
7.1
Any notice or other communications in relation to these Terms may be given by sending the same by hand delivery, pre-paid post, fax or e-mail (a) with respect to notices and communications to you, to the address and contact information you provided in connection with your purchase of Products and/or CentraCom Services; and (b) with respect to notices and communications to us, to the address listed at the beginning of these Terms or as otherwise specified in your order confirmation email or notification of Acceptance. These will also be the addresses for service of legal proceedings in the manner prescribed by law. Except as set out above in relation to cancellation of consumer orders, such notices or communications (where properly addressed) shall be considered received:
7.1.1
In relation to hand delivery, on the date of delivery at the relevant address (or, if this is not a working date, the first working date thereafter);
7.1.2
If posted, 5 working days after the date of posting;
7.1.3
If by fax, on the date of the transmission as evidenced by a successful transmission contact report (or, if this is not a working date, the first working date thereafter).
7.1.4
If sent by email, on the earliest of (i) the email being acknowledged by the recipient as received; (ii) receipt by the sender of an automated message indicating successful delivery or the email having been opened; or (iii) the expiry of 48 hours after transmission, provided that the sender has not received notification of unsuccessful transmission.
8.
AGREEMENT TO ARBITRATE
8.1
We will make every reasonable effort to resolve any disagreements that you have with us. In the event that we cannot resolve a disagreement to your satisfaction (or if we cannot informally resolve a concern we may have with you after attempting to do so informally), then you and we agree that except as expressly provided in Section 8.2 below, any claim, dispute, or controversy you may have against us arising out of, relating to, or connected in any way with these Terms, the CentraCom Commerce Solution, or the purchase or attempt to purchase of any Products or CentraCom Services through the CentraCom Commerce Solution shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this agreement to arbitrate in this Section 8 (“Rules and Procedures”). The AAA’s rules, and a form for initiating arbitration proceedings, are available on the AAA’s site at http://www.adr.org. The language of any dispute resolution procedure or any proceedings will be English.
8.2
This Section 8 applies to all consumers to the fullest extent allowable by law. The disputes governed by these procedures in this Section 8 include without limitation (a) claims arising out of or relating to any aspect of the relationship between you and us; (b) claims that arose out of your use of the CentraCom Commerce Solution; and (c) claims currently the subject of a purported class action litigation in which you are not a member of a certified class. However, the dispute resolution procedure specifically does not apply to (i) a claim relating to the enforcement or validity of your or our intellectual property rights; (ii) a claim relating to an allegation of theft, piracy, or unauthorized use; or (iii) claims for which class action litigation can be brought.
8.3
YOU AND WE BOTH AGREE THAT (A) EACH OF US CAN ONLY BRING CLAIMS AGAINST THE OTHER ON AN INDIVIDUAL BASIS AND THERE SHALL BE NO AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS; (B) ARBITRATION CAN DECIDE ONLY YOUR AND/OR OUR INDIVIDUAL CLAIMS, AND THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S); AND (C) THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
8.4
If the value of the relief sought is $10,000 or less, either you or we may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and us (subject to the arbitrator’s discretion to require an in-person hearing based on the circumstances). Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise. Any in-person arbitration shall be held at a location determined by the AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and us.
8.5
You agree further that: (a) the arbitrator shall apply Utah law consistent with the Federal Arbitration Act and applicable statutes of limitations, including principles of equity, and shall honor claims of privilege recognized at law; (b) the arbitrator shall not be bound by rulings in prior arbitrations involving us, but is bound by rulings in prior arbitrations involving both you and us to the extent required by applicable law; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
8.6
With the exception of Section 8.3 above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by the AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, Section 8.3 above is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor we shall be entitled to arbitrate their dispute.
9.
GOVERNING LAW AND VENUE
Any dispute arising out of or related to these Terms shall be governed by the internal laws of the State of Utah, without regard to or application of its choice of law rules or conflicts-of-laws principles, except that the Arbitration provision of these Terms shall be governed by the Federal Arbitration Act. In the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Sanpete County, Utah, and both you and us agree to submit to the personal jurisdiction of the courts located within Sanpete County, Utah for the purpose of litigating all such claims or disputes.
12.
GENERAL
These Terms sets forth the entire understanding between you and us with respect to your use of the CentraCom Commerce Solution and your purchase of Products and CentraCom Services from us, and supersedes any and all prior or contemporaneous communications, agreements, and representations, whether written or oral, related thereto. No amendment to these Terms will be valid unless made in writing and signed by you and us. These Terms prevail over any other terms or conditions contained in or referred to elsewhere or implied by trade, custom or course of dealing. Any purported terms or conditions to the contrary are hereby excluded to the fullest extent legally permitted. CentraCom may engage the services of subcontractors or agents to assist CentraCom in the performance of its obligations related to these Terms. You may not assign or transfer your rights under these Terms, and any purported assignment or transfer shall be void. No relaxation, forbearance, delay or indulgence by either you or us in enforcing any of these Terms or the granting of time by either party to the other shall prejudice or restrict such rights and powers. No waiver of any term or condition of these Terms shall be effective unless made in writing and signed by us. The waiver of any breach of any Term shall not be construed as a waiver of any subsequent breach or condition. If for any reason we determine or a court of competent jurisdiction finds that any provision or portion of these Terms to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction: (a) these Terms will not be affected in other jurisdictions to the extent that such determination or finding has no application; and (b) in the relevant jurisdiction, the remainder of these Terms (to the fullest extent permitted by law) will continue in full force and effect. Neither you nor us shall be in breach of these Terms in the event that party is unable to perform its obligations as a result of any reason or condition beyond its reasonable control.