Terms and Conditions
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 AN ARBITRATION CLAUSE.
This Agreement contains the terms and conditions that apply to your ("Customer") purchase from Dell Financial Services LLC ("DFS") for the used computer systems and/or related products ("Products") sold by DFS on the DellAuction.com, DFSDirectsales.com or other auction websites ("Websites") or through a DFS sales agent. By purchasing the Products, Customer agrees to be bound by and accepts these terms and conditions. THESE TERMS AND CONDITIONS APPLY UNLESS OTHERWISE AGREED IN WRITING BY DFS AND CUSTOMER. These terms and conditions are subject to change without prior written notice at any time, at DFS' sole discretion.
ALL PRODUCTS SOLD BY DFS PURSUANT TO THIS AGREEMENT ARE USED, AND CONTAIN USED PARTS.
Payment Terms; Orders.
Payment in full must be received by DFS prior to shipment of the Products. Orders are not binding upon DFS until accepted by DFS (as evidenced by shipment of the Products). DFS is unable to make address changes, cancels or updates after the order is placed.
Shipping Charges; Taxes and Other Related Fees.
Separate charges for shipping and handling will be assessed on all Products. Customer is responsible for sales and all other taxes and fees associated with the purchase. All orders must be signed for, no holds or redirects allowed. Returns for incorrect address or refusal of delivery may result in a restocking fee.
Title; Risk of Loss.
Title to the Products passes from DFS to Customer on shipment from DFS' facility. Loss or damage that occurs during shipping by a carrier selected by DFS is DFS' responsibility. Loss or damage that occurs during shipping by a carrier selected by Customer is Customer's responsibility.
For the purposes of this section, the use of 'export' shall mean the transfer of Products outside of the continental United States. Customer acknowledges that the exportation of Products is subject to compliance under the United States Export Control Administration Act of 1979 and the Export Administration Act of 1985, as they may be amended from time to time, and the rules and regulations promulgated thereunder (collectively, the "Act"). If Customer exports the Products, Customer agrees to comply with the terms and restrictions of the Act, along with any antiboycott laws and regulations related to the Products. Customer confirms that it will not unlawfully export or re-export the Products, directly or indirectly, to (i) any countries that are subject to U.S. export restrictions or (ii) any end user who has been prohibited from participating in U.S. export transactions by any agency of the U.S. government. Customer warrants that the Products will not be used to develop or produce weapons of mass destruction or sold to an end user who, Customer knows or has reason to know, may utilize the Products directly or indirectly in connection with weapons of mass destruction or nuclear activities listed in U.S. EAR 778.3(b)(1), (2) & (3), whether or not the item is specifically designed or modified for such activities. If Customer is not the ultimate end user, Customer agrees to screen the reliability of each end user so that the Products will not be used in a manner which is prohibited.
Upon request, Customer agrees to execute, acknowledge, deliver and to cause to be duly filed all such further instruments and documents and take actions as we may from time to time reasonably request to assure that the necessary export requirements have been met. If required, Customer will obtain prior authorization for export of the Products in accordance with the Export Administration Regulations of the Department of Commerce. If applicable, Customer will be responsible for assuring that the appropriate import permits and licenses with respect to the Products, including any markings needed for import are obtained. Customer shall indemnify and hold DFS harmless against any claims, damages or losses incurred as a result of Customer's failure to comply with the Act or terms contained herein. DFS reserves the right to terminate any purchase or this Agreement if Customer fails to comply with the Act or the terms contained herein.
DFS has no right, title, or interest in any software that may be contained in or a part of the Products. Title to software will remain with the applicable licensor(s). Any rights that Customer may have with respect to the software shall arise only pursuant to license agreements ("Licenses") between Customer and the licensor(s), which Licenses may be contained within the packaging associated with the Products. Customer agrees to use all software in accordance with the Licenses. Warranties. Some Products offered by DFS may be covered by a warranty provided in writing by the manufacturer when the Products were originally sold. To the extent assignable, DFS assigns to Customer any such remaining warranty provided by the manufacturer. PRODUCTS ARE SOLD ON AN "AS-IS, WHERE IS" BASIS. DFS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MECHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DFS does not warrant any software under this Agreement. Warranties, if any, for the software are contained in the license agreement that governs its purchase and use.
Subject to the following requirements, Customer may return the Products within thirty (30) days from the date of shipment and obtain a credit or refund of the purchase price paid less shipping and handling and any applicable restocking fees (as detailed in Section 9).
To return the Products, Customer must call DFS at (800) 891-8595 to receive a Credit Return Authorization. Customer must ship the Products to DFS in the original packaging and insure the shipment or accept the risk of loss or damage during shipment, all of which shall be at Customer's expense. The original sales invoice(s) must accompany the returned Products. To be eligible for return, the Products must be in same condition as when shipped to Customer and all of the manuals, power cords, software and other items shipped with the Products must also be included. No returns will be allowed for Products that are damaged while in Customer's possession or control. FROM TIME TO TIME, DFS MAY, IN ITS SOLE DISCRETION, EXCHANGE PRODUCTS OR PORTIONS OF A PRODUCT.
Unless the product is defective (as reasonably determined by DFS) or the return is a direct result of a DFS error, DFS will charge a restocking fee of 15% of the purchase price paid.
Limitation of Liability.
DFS DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN THIS AGREEMENT. DFS WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. DFS' SOLE LIABILITY FOR ANY CLAIMS, WHETHER BASED IN CONTRACT OR TORT, AT LAW OR IN EQUITY, FOR ANY LOSS OR DAMAGES ARISING, RESULTING FROM, OR CONNECTED WITH THE PRODUCTS, THE WEBSITES AND THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF THE ACTUAL AMOUNT OF SUCH LOSS OR DAMAGE OR THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE CLAIM.
Applicability of Limitations on Warranties and Remedies to Certain Customers. Certain laws do not allow limitations on implied warranties, or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations, may not apply and Customer may have additional rights to those contained herein.
Applicable Law; Not For Resale.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND FEDERAL LAW, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. Customer agrees to comply with all applicable laws and regulations of the various states and of the United States, including all applicable government export laws and regulations including those which apply to export of data. Customer agrees and represents that it is buying for its own internal use only, and not for resale.
This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this Agreement or to enter an order for Products which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by both Customer and DFS.
The section headings used herein are for convenience of reference only and do not form a part of this Agreement, and no construction or inference shall be derived therefrom.
Severability. If any provision of this Agreement shall be illegal, invalid or unenforceable to any extent under applicable law, such provision shall be fully severable. The remainder of this Agreement will remain in full force and effect and will not be terminated.
Either party to this Agreement may choose to have any dispute, claim, or controversy arising from or relating to this Agreement or the relationships which result from this Agreement, any application or advertisement related to this Agreement or the validity of this arbitration clause or the entire Agreement, resolved by binding arbitration by one arbitrator from the National Arbitration Forum ("NAF") selected by DFS with your consent. The rules of the NAF shall apply to any such arbitration proceeding, except that if the NAF rules conflict with this arbitration agreement, then the terms of this arbitration agreement shall control. Information about the NAF and copies of the NAF's rules may be obtained from the NAF at Box 50191, Minneapolis, MN, or by calling NAF at 800-474-2371, or by visiting NAF's wed site at www.arbforum.com. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act at 9 U.S.C. Section 1, et seq. The parties agree that the arbitration hearing may be by phone if the amount in controversy is $5,000 or less. Judgment upon the award rendered may be entered in any court having jurisdiction. Any arbitration award in excess of $100,000 made pursuant to this arbitration agreement may be appealed by the party against which the award is made. Such appeal will be a de novo (new) arbitration proceeding before three arbitrators. The parties agree and understand that they may choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right or opportunity to litigate disputes in court, but may elect to resolve their disputes through arbitration as provided herein. The parties agree and understand that all disputes arising under case law, statutory law, and all other laws including, but not limited to, all contract, tort, and property disputes, may be subject to binding arbitration in accord with this Agreement. No class action or request for relief may be brought under this arbitration agreement. Customer agrees that it shall not have the right to participate in arbitration or in court proceedings as a representative or a member of any class of claimants pertaining to any claim arising from or relating to this Agreement. The parties agree and understand that the arbitrator shall have all powers provided by the law and this Agreement, except for powers limited or prohibited by this Agreement. The institution and maintenance of any action for judicial relief in a court to foreclose upon any Products, to obtain a monetary judgment or to enforce this Agreement, shall not constitute a waiver of the right by any party to compel arbitration regarding any other dispute or remedy subject to arbitration in this Agreement. CUSTOMER UNDERSTANDS AND AGREES THAT IN ARBITRATION: YOU GIVE UP RIGHTS TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL; YOUR ABILITY TO COMPEL OTHER PARTIES TO PRODUCE DOCUMENTS OR BE EXAMINED IS MORE LIMITED THAN IN A LAWSUIT; AND, YOUR RIGHTS TO APPEAL OR CHANGE ANY ARBITRATION AWARD IN ANY COURT ARE STRICTLY LIMITED.
Other Product Information.
Refurbished Dell computers, Dell used computer products and supplies limited to stock on hand. No rain checks. Pricing, specifications, and availability valid in U.S. only and subject to change without notice. Taxes, fees, shipping, handling and any applicable restocking charges, other than free Dell shipping offers, if applicable, are extra and vary. Special offers on refurbished Dell computers not necessarily combinable. Dell deals and Dell discounts cannot be retroactively applied. For Dell Financial Services (DFS) L. P. purchases only. The DFS site and special offers on refurbished Dell computers and used Dell computers contained herein valid only for end users and not resellers and/or online computer auctions. DFS cannot be responsible for pricing or other errors, and reserves the right to cancel orders arising from such errors. Due to used Dell computer supplies being limited to stock on hand, DFS reserves the right to cancel any used Dell computer equipment orders in which the payment method used is not authorized within 2 business days of the order processing. Your Dell order is subject to cancellation by DFS, at DFS' sole discretion. If orders for Dell computer systems are cancelled by DFS, all Dell computer equipment, Dell computer parts and related item(s) will be returned to stock.