Terms and Conditions
Terms and Conditions
All the fun legal stuff....
CUSTOMER AGREEMENT
ATTENTION: PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY. BY ACCEPTING DELIVERY OF THE PRODUCTS STATEMENT OF WORK OR OTHER On The Flip Side, LLC (HEREINAFTER REFERRED TO AS “SELLER”) DOCUMENTATION TO PROVIDE PRODUCT OR PERFORM OR PROCURE ANY SERVICES, CUSTOMER HEREBY AGREES TO BE BOUND BY, AND ACCEPTS, THESE TERMS AND CONDITIONS.
ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS OR SERVICES AND RESULTS THEREOF POSTED ON THE WEBSITE DO NOT CONSTITUTE PART OF THIS AGREEMENT.
Important Information Concerning These Terms and Conditions
These Terms and Conditions (hereinafter referred to as this “Agreement" constitute a binding contract between Customer and SELLER. Customer accepts these Terms and Conditions by making a purchase from, or by placing an order with, SELLER or, by shopping on SELLER's website (the "Site") or, by otherwise requesting products (the "Products") or engaging SELLER to perform or procure any Services. This Agreement is subject to change, from time to time, without any prior notice, except that the Terms and Conditions posted on our website at the time Customer places an order or signs a purchase Invoice with a “Statement of Work” will govern the order in question, unless otherwise agreed to in writing by SELLER 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 SELLER. 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 its own administrative purposes only. Additional or different terms and conditions contained in any such purchase order, however, will be null and void.
Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the matters contained herein, and supersedes and 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. No course of prior dealings between the parties and no usage of trade will be relevant in determining the meaning of this Agreement.
Governing Law
THIS AGREEMENT AND ANY ATTENDANT STATEMENT OF WORK SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. BY SIGNING THIS AGREEMENT, CUSTOMER AGREES TO SUBMIT ANY DISPUTE ARISING HEREUNDER TO THE EXCLUSIVE JURISDICTION OF THE MECKLENBURG COUNTY SUPERIOR OR DISTRICT COURTS LOCATED IN FT. LAUDERDALE, FLORIDA. CUSTOMER FURTHER SUBMITS TO THE PERSONAL JURISDICTION OF THESE COURTS AND WAIVES THE RIGHT TO CHANGE VENUE TO ANY OTHER JURISDICTION.
Except in the case of nonpayment, neither party may institute any action in any form arising out of this Agreement more than one (1) year after the cause of action has arisen. The rights and remedies provided SELLER under this Agreement are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
General Terms
No Returns or Refunds
No returns or refunds will be granted on purchases. No returns or refunds will be granted on the purchase of software, supplies, and services or labor.
Receipt of Software
Customer understands receipt of software occurs when software license code is delivered via electronic mail (e-mail). Any software license delivered via e-mail will be considered in Customer’s possession.
Payment
If purchasing only hardware, software, services or supplies, customer is responsible for payment in full at the time the order is placed. Charges on customer's credit card statement will reflect On The Flip Side, LLC.
Monthly Support is billed on a recurring, monthly basis for $39.99 per month. Customer may cancel this payment at any time with a 30-day notice.
Rebates or Promotions Requiring Active Payment Processing Account.
For any rebate or promotion requiring an active Merchant Account, account activation is determined by the payment processor’s independent guidelines. Customer shall be eligible for rebate payment after 30 days of continual and consistent processing through its Merchant Account. Any rebate shall be voided or returned to POS Nation if i) purchase is returned or cancelled or ii) Merchant Account is cancelled or Customer ceases to process payments through its Merchant Account within 90 days of activation. Customer must submit written request to POS Nation to claim any earned rebate. Rebate must be claimed within six months of Merchant Account activation or it will be voided. All free devices, including pin pads, must be returned if Merchant Service Processing Agreement is canceled.
Order Processing and Shipping Explanations
Orders are processed by the Fulfillment Department within 48 hours from submission. After processing, the shipping method and time-frames purchased will apply. The typical expected delivery time-frame of a complete system build is 7-14 days. Customer is advised to contact the Customer Service Department for an accurate arrival quote. Ground shipping is the general method of shipment (3-7 days). Expedited shipping may be purchased at the time of sale or prior to ship-out. Shipping cannot be intercepted nor expedited once in the possession of the carrier. SELLER and/or its affiliates will arrange shipping, crating and packaging. SELLER neither accepts responsibility for the carrier’s performance, nor accepts any responsibility for damages caused to the merchandise after it leaves SELLER’s office or warehouse location. If damage occurs in route to Customer, SELLER will aid with handling the damage claim with the shipper; however, Customer will be responsible for filing a damage claim with the carrier. Inspection for concealed damage will be the sole responsibility of Customer. Any and all damaged equipment must be documented with the freight driver before the driver departs your location. Any damage must be reported immediately. Insurance will be used on all equipment shipped. If the item is shipped within North Carolina, or if you pick it up at our office in Charlotte, North Carolina sales tax will be charged.
Risk of Loss
If Customer provides SELLER with Customer’s carrier account number or selects a carrier, other than a carrier that regularly ships for SELLER, title to Products and risk of loss or damage during shipment pass from SELLER 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 SELLER 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.
Services
Customers may order services, warranty, support, and/or training (collectively, "Services") from or through SELLER. Certain Services may be sold by SELLER as a distributor or sales agent ("Third Party Services").
In the case of Third Party Services, the third party shall be the party responsible for providing the services to the Customer and, Customer agrees that he will look solely to the third party for any loss, claims or damages arising from, or related to, the provision of such Third Party Services. Customer hereby releases SELLER and the entities that control, are controlled by, or are under common control with SELLER ("Affiliates"), from any and all claims arising from, or relating to, the purchase or provision of any such Third Parties Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected by SELLER will be collected solely in the capacity as an independent sales agent.
Where Services are ordered in a Statement of Work, each Statement of Work hereby incorporates the terms of this Agreement. Each Statement of Work constitutes a separate agreement with respect to the Services performed. SELLER, or any of its Affiliates on behalf of SELLER, may execute a Statement of Work. In the event of an addition to, or a conflict between any term or condition of the Statement of Work and this Agreement, the terms and conditions of this Agreement will control, except as expressly amended in the applicable Statement of Work by specific reference to this Agreement. Each such amendment will be applicable only with respect to such Statement of Work and not to any future Statements of Work. Changes to the scope of the Services described in a Statement of Work will be made only in writing, executed by authorized representatives of both parties. SELLER will have no obligation to commence work in connection with any such change, unless, and until, the change is agreed upon in writing executed by both parties. All such changes to the scope of the Services will be governed by these Terms and Conditions and the applicable Statement of Work. Each Statement of Work may be signed in separate counterparts, each of which shall be deemed an original and all of which together will be deemed to be one original.
Cooperation
In addition to any specific Customer duties set forth in any applicable Statement of Work, Customer agrees to cooperate with SELLER in connection with performance of the Services by providing (i) timely responses to SELLER's inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by SELLER which are necessary or useful as determined by SELLER in connection with providing the Services, including, but not limited to, physical and system/computer access to Customer's computer systems, and (iii) all Required Consents necessary for SELLER to provide the Services. "Required Consents" means consents or approvals required to give SELLER, its Affiliates, and its and their subcontractors the right or license to access, use and modify all data and third party products. Customer acknowledges and agrees that the Services are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents, employees or subcontractors (“Personnel”) engaged or appointed by Customer who are selected by Customer to work with SELLER.
SELLER will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to SELLER from time to time.
Access
SELLER may perform the Services at Customer's place of business, at SELLER's own facilities or such other locations as SELLER and Customer deem appropriate. When the Services are performed at Customer's premises, SELLER will attempt to perform such Services within Customer's normal business hours, unless otherwise jointly agreed to by the parties. Customer will also provide SELLER access to Customer's staff and any other Customer resources (and when the Services are provided at another location designated by Customer, the staff and resources at such location) that SELLER determines are useful or necessary for SELLER to provide the Services. When the Services are provided on Customer's premises or at another location designated by Customer, Customer agrees to maintain adequate insurance coverage to protect SELLER and Customer's premises and to indemnify and hold SELLER and its Affiliates, and its and their agents and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys' fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the performance of the Services, other than solely as a result of SELLER's gross negligence or willful misconduct.
Payment
Orders are not binding upon SELLER until accepted by SELLER. Customer agrees to pay the total purchase price for the Products, plus shipping (to the extent shipping is not prepaid by Customer), including shipping charges that are billed to SELLER as a result of using Customer's carrier account number. Terms of payment are within SELLER's sole discretion. In connection with Services being performed pursuant to a Statement of Work, Customer will pay for the Services in the amounts and in accordance with any payment schedule set forth in the applicable Statement of Work. If no payment schedule is provided, Customer will pay for the Services as invoiced by SELLER. 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 SELLER. SELLER may issue an invoice to Customer. SELLER may invoice Customer separately for partial shipments, and SELLER may invoice Customer for all of the Services described in a Statement of Work or any portion thereof. 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 SELLER 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 Statement of Work, the Products or the Services. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide SELLER with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of SELLER’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, SELLER reserves the right to suspend Services until payment is received.
Except as otherwise specified on an applicable Statement of Work, Customer will reimburse SELLER for all reasonable out-of-pocket expenses incurred by SELLER in connection with the performance of the Services, including, but not limited to, travel and lodging.
Export Sales
If this transaction involves an export of items (including, but not limited to, commodities, software or technology) subject to the Export Administration Regulations, such items were exported from the United States by SELLER in accordance with the Export Administration Regulations. 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. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers' warranties for exported Products may vary or may be null and void for Products exported outside the United States.