FCPA Scanner Store Terms of Sale
1. SCOPE AND APPLICATION
1.1 THESE TERMS OF SALE ("TERMS") CONSITUTE A BINDING LEGAL CONTRACT BETWEEN (A) US, FUJITSU COMPUTER PRODUCTS OF AMERICA, INC., THE SELLER (WITH REFERENCES TO “FCPA”, "US", "WE", OR "OUR" BEING CONSTRUED ACCORDINGLY), AND (B) YOU, THE PURCHASER (WITH REFERENCES TO "YOU", "YOUR" OR “CUSTOMER” BEING CONSTRUED ACCORDINGLY).
THESE TERMS APPLY TO ALL OFFERS, SALES AND PURCHASES OF PRODUCTS FROM THE FCPA SCANNER STORE, INCLUDING HARDWARE, SOFTWARE, LICENSE RIGHTS, THIRD PARTY PRODUCTS, AND SERVICE USE RIGHTS SOLD OR RESOLD BY US ("PRODUCTS") OR ACCESS RIGHTS TO SERVICES WE DIRECTLY PROVIDE (INCLUDING, WITHOUT LIMITATION, EXTENDED DOWNLOAD SERVICE OR REGISTRATION BACKUP SERVICE) ("FCPA SERVICES" or “Service Contracts”), WHICH OCCUR EITHER (A) THROUGH THE ONLINE STORE ON WHICH WE POST THESE TERMS (the "FCPA SCANNER STORE")., AND/OR (B) ANY OTHER MEANS THROUGH WHICH WE ENGAGE IN THE SALE OF PRODUCTS AND FCPA SERVICES, SUCH AS BUT NOT LIMITED TO ORDERS BY PHONE . BY ORDERING ANY PRODUCTS OR FCPA SERVICES FROM THE FCPA SCANNER STORE, YOU CONFIRM YOUR ACCEPTANCE OF THIS AGREEMENT.
1.3 ALL ORDERS ARE SUBJECT TO YOUR CONSENT TO ANY APPLICABLE LICENSE AGREEMENT OR USAGE TERMS IS DELIVERED WITH, INCLUDED IN, OR PRESENTED IN CONNECTION WITH YOUR PRODUCTS OR FCPA SERVICES. If you do not agree to the license or usage 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 FCPA Scanner Store. 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, NONCANCELABLE AND NONREFUNDABLE, 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 FCPA Services available for purchase through the FCPA Scanner Store as accurately as possible. However, we do not warrant that the prices, quotations, anticipated delivery dates, and descriptions made or referred to on the FCPA Scanner Store or any related websites are accurate, complete, reliable, current, or error free. The prices, quotations and descriptions made on the FCPA Scanner Store 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 FCPA Scanner Store 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 FCPA Scanner Store 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 or FCPA Services 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 FCPA Services and Third Party Services. If you do not consent to receive any notices electronically, you must stop using the FCPA Scanner Store.
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 FCPA 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, such as by PayPal or purchase order, only as authorized by FCPA ("Acceptance"). We may cancel your order at any time and for any lawful reason prior to Acceptance. Prior to Acceptance, an automatic email 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 FCPA Scanner Store, 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 FCPA Services; (d) cancel or revoke service use rights for any 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 FCPA Scanner Store 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 FCPA Services are those in effect at the time of Acceptance, unless otherwise expressly agreed. Prices may be indicated on the FCPA Scanner Store 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 method you select while completing your order through the FCPA Scanner Store. We will charge credit or debit cards on dispatch of the Product or commencement of FCPA 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 FCPA Scanner Store, 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 Payment by purchase order must be approved by FCPA in advance. You can apply for a line of credit by filling out a PO Account Request Form. The form requires your Dun & Bradstreet (DUNS) number and your company’s financial statements for the last two years. FCPA reserves the right to accept or reject any application or purchase order, at its sole discretion. To apply to pay by purchase order, contact the Customer Support team and ask for the PO Enabled Customer Account Request Form. They can be reached at: Customer Support 1-800-301-9475 (option 3) or by email at firstname.lastname@example.org.
3.6 FCPA will not accept purchase orders, for orders that are less than $500. If an individual order is below the minimum amount of $500, payment must be made utilizing a credit card.
3.7 No counterclaim or setoff 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.
3.8 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.
3.9 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. PRODUCTS AND SERVICES ELIGIBLE FOR RETURN AND/OR CANCELLATION; TERMS FOR REFUNDS
4.1 Fujitsu and ScanSnap Scanners
Fujitsu and ScanSnap Scanners may be returned by Customer up to thirty (30) days from the date of purchase for a full refund.
4.2 Maintenance Service Contracts
Either party may cancel a Service Contract, with or without cause, at any time upon thirty (30) prior written days’ notice to the other party; provided however that a Customer who elects to terminate a Service Contract and who received a discount from the normal charge for Services to be provided under this Service Contract shall be liable for an early cancellation fee in an amount equal to the discount received.
If Customer elects to cancel a Service Contract within the first six months of the term of the Service Contract, Customer shall receive a refund in an amount equal to the lesser of (i) 75% of the total amount paid by the Customer under the Service Contract prior to the effective date of cancellation or (ii) the prorata amount for the remaining unexpired term of the Service Contract, less any charges at FCPA's customary time and materials rate for onsite visits made, and for consumables provided to the Customer.
A Customer who elects to cancel the Agreement after the first six-month period is not eligible for refunds of any kind whatsoever. A Customer will be charged for any Services provided after cancellation of the Service Contract at time and material rates.
5.1 We will use all commercially reasonable efforts to deliver Products in a timely manner. For Products delivered electronically, we will deliver such Products by electronic transmission or via download. Delivery timelines/dates specified on the FCPA Scanner Store, in any order acknowledgement or elsewhere are estimates only.
5.2 We make every effort to ship Products within one to two business days of an order being placed. Please note that this is not a guarantee of shipment and/or delivery date for your order. Some parts or products may not be available, could be discontinued, or otherwise unavailable. In some areas, delivery may take longer due to the frequency of deliveries to the destination zip code. Other issues that could impact delivery are the total amount of time to process your order including: packaging, transit time to the carrier, size, weight and transit time to the delivery address. FCPA reserves the right to determine if Products will ship or not based on parts or Product availability.
5.3 We deliver within the United States of America only (“Territory"). 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.
5.4 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.
5.5 Carriers are selected depending on the weight of the package and the distance it has to travel from our fulfillment center, requests for specific carriers will not be accommodated.
5.6 All Products ordered from the website shall require a signature from an adult recipient at the Delivery Address upon delivery from the carrier.
5.7 Except as otherwise provided in these Terms, risk of loss of or damage to the Products passes to you (a) for Products delivered digitally, upon the provision to you of a download link for Software, or of a license key or Service Use Rights, via email or other electronic delivery method; and (b) for Products delivered physically, upon delivery of a Product to the delivery location.
6. REJECTION, DAMAGE OR LOSS IN TRANSIT; PRODUCT WARRANTY
Except as set out above or under any applicable returns policy presented on the FCPA Scanner Store and applicable to your purchase of a Product or FCPA Service (“Returns Policy”) and subject to any rights you have under applicable law that cannot be excluded or limited by these Terms:
(a) 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 30 days of your receipt of the Products.
(b) 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) ; (c) Defective performance of FCPA 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. We shall not be liable and you shall not be entitled to reject Products or FCPA Services, except for products identified here.
6.2 You shall be liable for any and all damages or losses arising from: use of the Product by you, or anyone authorized by you; defective installation of the Product; use of the Product in connection with other defective, unsuitable and/or defectively installed equipment; your (or anyone authorized by you to use the Product) negligenceor willful acts; improper use; and/or use in any manner inconsistent with the manufacturer's specifications or instructions.
6.3 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.
6.4 We shall remain entitled to payment in full for the Products or FCPA Services delivered.
6.5 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. 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:
6.6 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.
6.7 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 failure to perform or defective performance of a Service make good such failure or defective performance; and/or
(b) 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 only after you return the Product; or
(ii) Refund the price paid for any Products found to be damaged or defective, only after you return the Product.
However, your rights of repair or 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 Products have been repaired or altered by persons other than the manufacturer, us or any FCPA authorized dealer; defective Product or Products have not been returned together with full details in writing of the alleged defects within 30 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 manufacturers' instructions or other directions issued or made available by us in connection with the delivered Products.
6.8 You will have the benefit of any manufacturer's, licensor's or supplier's warranty provided by the manufacturer, licensor or supplier to you in connection with your purchased Products and should refer to the products identified here. (If applicable, the Returns Policy may also set out procedures applicable to repairs or replacement of defective Products delivered.)
7. SOFTWARE AND SERVICE USE RIGHTS
7.1 Except to the extent provided for in any applicable License Terms, your rights of return and/or to a refund under these Terms and any applicable Returns Policy do not apply in the event that you open the Software shrink wrap and/or break the license seal and/or use the Software.
7.2 Such Software may not be copied, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, reverse engineered or combined with any other software, save to the extent that (i) this is permitted in the License Terms, or (ii) applicable law expressly mandates such a right which cannot legally be excluded by contract.
7.3 Except to the extent expressly provided by us in writing or under relevant License Terms, Software is provided 'as is' without any warranties, terms or conditions as to quality, fitness for purpose, performance or correspondence with description and we do not offer any warranties or guarantees in relation to Software installation, configuration or error/defect correction. You are advised to refer to any License Terms with regards to determining your rights against a manufacturer, licensor or supplier of the Software. Where any Product supplied is or includes software ("Software"), this Software (a) is licensed to you (and not sold to you) by the licensor/owner subject to their license agreement or terms included with such Software or presented during your checkout process or software installation process ("License Terms"). In addition:
8. WAIVER AND LIMITATION OF LIABILITY; RISK ALLOCATION
8.1 YOU UNDERSTAND AND AGREE THAT WE ARE NOT THE MANUFACTURER OF THE PRODUCTS WE OFFER FOR SALE, AND ARE NOT THE OPERATOR OF ANY THIRD PARTY SERVICES FOR WHICH WE MAY OFFER SERVICE USE RIGHTS FOR SALE THROUGH THIS SITE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND THE PRODUCTS AND FCPA SERVICES THAT YOU PURCHASE FROM US ARE PROVIDED TO YOU “AS IS,” AND YOUR USE IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. UNLESS AGREED OTHERWISE OR REQUIRED BY APPLICABLE LAW, ANY WARRANTIES PROVIDED IN RELATION TO PRODUCTS OR FCPA SERVICES ONLY EXTEND TO YOU ON THE UNDERSTANDING THAT YOU ARE A USER AND NOT A RESELLER OF THOSE PRODUCTS OR FCPA SERVICES.
8.2 WE HAVE PRICED PRODUCTS AND FCPA SERVICES AVAILABLE FOR PURCHASE FROM US UPON THE UNDERSTANDING ABOVE, 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 FCPA 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 SERIVCES, OR ANY LOST PROFITS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOSS OR INTERRUPTION OF BUSNIESS) IN CONNECTION WITH YOUR USE OF THIS SITE OR YOUR PURCHASE OR USE OF ANY PRODUCT OR FCPA 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.
8.3 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.
8.4 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 third party products purchased by you in connection with your use of the FCPA Scanner Store (including without limitation your use of any Third Party Service for which you purchase Service Use Rights from us), or (b) the violation of any of these Terms by you, your employees, consultants, agents, distributors, or customers.
8.5 To the fullest extent permitted by law and except where expressly set out in any Terms or elsewhere, we shall have no liability to you in the event the Products or FCPA 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 to 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.
9. EXPORT & CUSTOMS DUTIES
9.1 Each Product and FCPA Service and any related items (including software, technology and technical information) sold, exported, transferred, supplied or licensed by us may be subject to and governed by the laws of the United States and other countries, including but not limited to the US Export Administration Regulations (EAR) and US Foreign Assets Control Regulations (FACR). You are required to comply with all applicable laws relating to the export, reexport, transfer, use, or import of any Product or related items. Diversion contrary to applicable law is prohibited. Notwithstanding any other request or agreement to the contrary, neither you nor FCPA shall take or be required to take any action prohibited or penalized under US or applicable foreign law.
9.2 FCPA does not ship products purchased from the FCPA Scanner Store outside of the United States. Should this change, the tangible shipment of Products from one country for delivery in another country may be subject to customs duties, fees, taxes and/or other charges in the country of ultimate destination. Unless otherwise expressly stated by FCPA during the order process, (a) your payment for the order in question does not include any customs duties, fees, taxes and/or other charges that may be due and payable in the Product’s country of ultimate destination, and (b) the receiving party in the Product’s country of ultimate destination is responsible for making entry and properly declaring the merchandise to the appropriate customs authorities, paying any applicable customs duties/fees/taxes/charges, and/or satisfying any additional import related requirements. You should contact the local customs authorities in the relevant jurisdiction for further information on the applicable customs requirements and procedures, duties, fees, taxes, and/or other charges that may be assessed against the Product.
Notices will be deemed delivered:
10.1 If mailed 5 business days after the date of mailing;
10.2 If by fax, on the date of the transmission as evidenced by a successful transmission contact report (or, if this is not a business day, the first business day thereafter);
10.3 If delivered by hand, on the date of delivery at the relevant address (or, if this is not a business day, the first business day thereafter);
10.4 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. Any notice or other communications in relation to these Terms may be given by sending the same by hand delivery, prepaid post, fax or Email (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 FCPA 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.
11. AGREEMENT TO ARBITRATE
11.1 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 10.2 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 FCPA Scanner Store, or the purchase or attempt to purchase of any Products or FCPA Services through the FCPA Scanner Store 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 10 (“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.
11.2 This Section 11 applies to all consumers to the fullest extent allowable by law. The disputes governed by these procedures in this Section 10 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 FCPA Scanner Store; 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.
11.3 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.
11.4 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.
11.5 You agree further that: (a) the arbitrator shall apply California 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.
11.6 With the exception of Section 11.3 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 10.3 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.
12. 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 California, without regard to or application of its choice of law rules or conflicts of laws principles. 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 Santa Clara County, California, and both you and us agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims or disputes.
These Terms sets forth the entire understanding between you and us with respect to your use of the FCPA Scanner Store and your purchase of Products and FCPA 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. FCPA may engage the services of subcontractors or agents to assist FCPA 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.
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