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 A BINDING ARBITRATION CLAUSE.
NOTE: These U.S. Terms and Conditions of Sale apply to direct purchases made from Tobii Dynavox by phone, the Internet, or fax.
These terms and conditions ("Agreement") apply to your purchase of products and/or services and support ("Product") sold in the United States by Tobii Dynavox, including its affiliates or subsidiaries. By accepting delivery of the Product, you accept and are bound to the terms and conditions of this Agreement. If you do not wish to be bound by this Agreement, you must notify Tobii Dynavox and return your purchase pursuant to Tobii Dynavox's Return Policy. THIS AGREEMENT SHALL APPLY UNLESS (I) YOU HAVE A SEPARATE PURCHASE AGREEMENT WITH TOBII DYNAVOX, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (II) OTHER TOBII DYNAVOX TERMS AND CONDITIONS APPLY TO THE TRANSACTION.
- Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both you and Tobii Dynavox. If you do not receive an invoice or acknowledgement in the mail, via e-mail, or with your Product, information about your purchase may be obtained by contacting customer support at 800-588-4548. Payment Terms; Orders; Quotes; Interest. Terms of payment are within Tobii Dynavox's sole discretion, and unless otherwise agreed to by Tobii Dynavox, payment must be received by Tobii Dynavox's prior to Tobii Dynavox's acceptance of an order. Payment for products will be made by credit card, wire transfer, check, money order, Purchase Order or some other prearranged payment method agreed to by Tobii Dynavox. Invoices are due within 30 days of the date of invoice. Tobii Dynavox may invoice parts of an order separately. Your order is subject to cancellation by Tobii Dynavox, at Tobii Dynavox's sole discretion. Unless you and Tobii Dynavox have agreed to a different discount, Tobii Dynavox's standard pricing policy for Tobii Dynavox-branded products, which include both hardware and services in one discounted price, allocates the discount off list price applicable to the service portion of the system to be equal to the overall calculated percentage discount off list price on the entire system. Tobii Dynavox is not responsible for pricing, typographical, or other errors in any offer by Tobii Dynavox and reserves the right to cancel any orders resulting from such errors.
- Shipping Charges; Taxes; Title; Risk of Loss. Shipping and handling are additional unless otherwise expressly indicated at the time of sale. Title to products passes from Tobii Dynavox to Customer on shipment from Tobii Dynavox facility. Loss or damage that occurs during shipping by a carrier selected by Tobii Dynavox is Tobii Dynavox's responsibility. You must notify Tobii Dynavox within 30 days of the date of your invoice or acknowledgement if you believe any part of your purchase is missing, incorrect or damaged. Unless you provide Tobii Dynavox with a valid and correct tax exemption certificate applicable to your purchase of Product and the Product ship-to location, you are responsible for sales and other taxes associated with the order. Shipping dates are estimates only.
- Software. All software is provided subject to a license agreement and you agree that you will be bound by such license agreement in addition to these terms.
- Return Policies; Exchanges. Tobii Dynavox's return policy can be found here and you agree to those terms. Prior to returning item, you must contact us directly to obtain a Return Material Authorization Number to be included with your return. You must return Product to us in its original or equivalent packaging. You are responsible for risk of loss, shipping and handling fees for returning or exchanging Product. Additional fees may apply. If you fail to follow the return or exchange instructions and policies provided by Tobii Dynavox, Tobii Dynavox is not responsible for Product that is lost, damaged, modified or otherwise processed for disposal or resale. At Tobii Dynavox's discretion, credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing.
- Changed or Discontinued Product. Tobii Dynavox's policy is one of ongoing update and revision. Tobii Dynavox may revise and discontinue Product at any time without notice to you and this may affect information saved in your online "cart." Tobii Dynavox will ship Product that has the functionality and performance of the Product ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible. Parts used in repairing or servicing Product may be new, equivalent-to-new, or reconditioned.
- Service and Support. Service offerings may vary. In addition to these terms and conditions, Tobii Dynavox and/or your third-party service provider may provide service and support for select products. Tobii Dynavox has no obligation to provide service or support until Tobii Dynavox has received full payment for the Product or service/support contract you purchased. Tobii Dynavox is not obligated to provide third-party branded service or support, or service or support for any products or services that you purchased through a third-party and not Tobii Dynavox. It is your responsibility to backup all existing data, software, and programs before receiving services or support (including telephone support). Tobii Dynavox and/or your third-party service provider will have no liability for loss or recovery of data, programs or loss of use of system(s) arising out of the services or support or any act or omission, including negligence, by Tobii Dynavox or your-third-party service provider. Tobii Dynavox and/or your third-party service provider is not permitted by law to copy pirated or copyrighted materials or to copy or handle illegal data. Prior to Tobii Dynavox and/or your third-party service provider providing service or support, you represent that your system(s) does not contain illegal files or data. You also represent that you own the copyright or have a license to make copies to all files on your system and do not have any data that would cause Tobii Dynavox or your third-party service provider to be liable for copyright infringement if such data was copied by Tobii Dynavox and/or your third-party service provider. Parts used in repairing or servicing Product(s) may be new, equivalent-to-new or reconditioned.
- Limitation of Liability. TOBII DYNAVOX DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCT NOT BEING AVAILABLE FOR USE, LOST PROFITS, LOSS OF BUSINESS OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TOBII DYNAVOX WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCT, TOBII DYNAVOX IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
- Not For Resale or Export. You agree to comply with all applicable laws and regulations of the various states and of the United States. You agree and represent that you are buying only for your own internal use only, and not for resale or export. Tobii Dynavox has separate terms and conditions governing resale of Product by third parties and transactions outside the United States.
- Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND TOBII DYNAVOX arising from or relating to this agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement, Tobii Dynavox's advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF PENNSYLVANIA WITHOUT REGARD TO CONFLICTS OF LAW.
- Binding Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND Tobii Dynavox, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, "Tobii Dynavox") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Tobii Dynavox's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE NATIONAL ARBITRATION FORUM (NAF) under its Code of Procedure then in effect (available via the Internet at http://www.arb-forum.com , or via telephone at 1-800-474-2371). In the event of any inconsistency or conflict between NAF Code of Procedure and this Agreement, this Agreement shall control. The arbitration will be limited solely to the dispute or controversy between customer and Tobii Dynavox. NEITHER CUSTOMER NOR Tobii Dynavox SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The individual (non-class) nature of this dispute provision goes to the essence of the parties' arbitration agreement, and if found unenforceable, the entire arbitration provision shall not be enforced. This transaction involves interstate commerce, and this provision shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Tobii Dynavox will not be responsible for paying any individual customer arbitration fees. If any customer prevails on any claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for fees, the Arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. Otherwise, each party shall pay for its own costs and attorneys' fees, if any. Information may be obtained and claims may be filed with the NAF at P.O. Box 50191, Minneapolis, MN 55405.