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Purchase Agreement - Discontinued Products
PLEASE READ THIS PURCHASE AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT INFORMATION CONCERNING YOUR RIGHTS AND OBLIGATIONS WITH REGARD TO YOUR PURCHASE OF PLANTRONICS PRODUCTS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE.
This agreement (the "Agreement") applies to your purchase of certain discontinued products ("Product" or "Products") sold by Plantronics, Inc., and its affiliates (collectively, "Plantronics"). By accepting delivery of a Product, you accept and agree to be bound to the provisions of this Agreement. If you do not wish to be bound by this Agreement, you must notify Plantronics and return your purchase pursuant to Plantronics Return Policy. This Agreement shall apply and control your purchase of the Products unless (i) you have a separate purchase agreement with Plantronics, in which case the provisions of any such separate agreement shall control; or (ii) other Plantronics terms and conditions apply to this purchase. If you are a tax-exempt purchaser you may not purchase Products through our Website under this Agreement. If you wish to make a tax-exempt purchase, please visit our Public Sector area.
Payment Terms; Orders; Quotes; Taxes. Terms of payment for the Products are within Plantronics sole discretion and payment must be received by Plantronics prior to acceptance of an order. Payment for the Products will be made by credit card as set forth at Payment Info. In the event a Product is listed at an incorrect price or with incorrect information due to typographical error or if the price has increased or decreased between the time the item is placed in a shopping cart and the time that the purchase is actually made, Plantronics shall have the right to refuse or cancel any orders placed for Product listed at the incorrect price. Plantronics shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, Plantronics will issue a credit to your credit card account in the amount of the charge.
Your receipt of an electronic or other form of order confirmation does not signify Plantronics acceptance of your order, nor does it constitute confirmation of Plantronics offer to sell. Plantronics reserves the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Plantronics may require additional verifications or information before accepting any order. Plantronics may charge and withhold the applicable sales tax for orders. Otherwise, you are solely responsible for all sales taxes, or other taxes, on orders shipped to you.
Shipping. Shipping of the Product will be handled as set forth at:
Limited Warranty. PLANTRONICS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR ANY EXPRESS OR IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF DEALING OR PERFORMANCE. PURCHASER HEREBY AGREES TO PURCHASE THE PRODUCTS "AS IS" AND THAT YOU HAVE NO RIGHT TO RETURN THE PRODUCTS IF THEY ARE DEFECTIVE OR OTHERWISE NON-CONFORMING.
Additional Limitation of Warranties and Damages.
IN NO EVENT SHALL PLANTRONICS BE LIABLE UNDER ANY THEORY FOR ANY DAMAGES BASED UPON INFRINGEMENT OF THE PRODUCTS OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ENTITY. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF PLANTRONICS AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR $5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
Changed or Discontinued Product. Plantronics may revise and discontinue Products at any time without notice to you and this may affect information saved in your online "cart." Parts used in repairing or servicing a Product may be new, equivalent-to-new, or reconditioned.
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.
Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES HEREUNDER, 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 PLANTRONICS ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, 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 you and Plantronics, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, "Plantronics") arising from or relating to this Agreement 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 Plantronics. NEITHER CUSTOMER NOR PLANTRONICS 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. 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.