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Terms and Conditions of Sale

Software Applications, Printing Products and/or Related Products

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 DISPUTE RESOLUTION CLAUSE.

These terms and conditions ("Agreement") apply to your purchase of software applications, printing products and/or related products and/or services and support sold in the United States ("Product") by the Microflare entity named on the invoice or acknowledgement ("Microflare") provided to you. 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 Microflare immediately. If returned, Product(s) must remain in the boxes in which they were shipped. THIS AGREEMENT SHALL APPLY UNLESS (I) YOU HAVE A SEPARATE PURCHASE AGREEMENT WITH MICROFLARE, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (II) OTHER MICROFLARE TERMS AND CONDITIONS APPLY TO THE TRANSACTION.
  1. 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 Microflare. 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 your sales representative.
  2. Payment Terms; Orders; Quotes; Interest. Payment terms are within Microflare's sole discretion, and, unless otherwise agreed to by Microflare, payment must be made at the time of purchase. Payment for Product may be made by credit card, wire transfer, or some other prearranged payment method. Microflare may invoice parts of an order separately. Your order is subject to cancellation by Microflare, at Microflare's sole discretion. Unless you and Microflare have agreed to a different discount, Microflare's standard pricing policy for Microflare-branded systems, which include both software 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. Microflare is not responsible for pricing, typographical, or other errors, in any offer by Microflare and reserves the right to cancel any orders resulting from such errors.
  3. Shipping Charges; Taxes; Title; Risk of Loss. Shipping and handling are additional unless otherwise expressly indicated at the time of sale. Loss or damage that occurs during shipping by a carrier selected by Microflare is Microflare's responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. You must notify Microflare within 30 days of the date of your invoice or acknowledgement if you believe any part of your purchase is missing wrong or damaged. Unless you provide Microflare 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. Title to software will remain with the applicable licensor(s).
  4. Warranties. THE LIMITED WARRANTIES APPLICABLE TO MICROFLARE-BRANDED PRINTING/SOFTWARE PRODUCT CAN BE FOUND IN THE DOCUMENTATION MICROFLARE PROVIDES WITH THE PRODUCT. MICROFLARE MAKES NO WARRANTIES FOR SERVICE, SOFTWARE, OR NON-MICROFLARE BRANDED PRODUCT. SUCH PRODUCT IS PROVIDED BY MICROFLARE "AS IS". WARRANTY AND SERVICE FOR NON-MICROFLARE BRANDED PRODUCT, IF ANY, IS PROVIDED BY THE ORIGINAL MANUFACTURER, NOT BY MICROFLARE. MICROFLARE MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN MICROFLARE'S APPLICABLE WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE, PACKING SLIP OR ACKNOWLEDGEMENT. WARRANTIES AND SERVICE WILL BE EFFECTIVE, AND MICROFLARE WILL BE OBLIGATED TO HONOR ANY SUCH WARRANTIES AND SERVICES, ONLY UPON MICROFLARE'S RECEIPT OF PAYMENT IN FULL FOR THE ITEM TO BE WARRANTED OR SERVICED.
  5. Software. All software is provided subject to the license agreement that is part of the software package and you agree that you will be bound by such license agreement.
  6. Return Policies; Exchanges. New and refurbished Product that you purchase directly from Microflare (and not a third party) you may return or exchange only in accordance with Microflare's return policy in effect on the date of the invoice or acknowledgement. Any returns or exchanges will be made in accordance with Microflare's exchange policies in effect on the date of the return or exchange. You must contact us directly before you attempt to return Product to obtain a Return Material Authorization Number for you to include with your return. You must return Product to us in their 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 Microflare, Microflare is not responsible whatsoever for Product that is lost, damaged, modified or otherwise processed for disposal or resale. If you are returning all components in an order, you will be credited the full amount paid for the order. At Microflare's discretion, credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing.
  7. Changed or Discontinued Product. Microflare's policy is one of ongoing update and revision. Microflare may revise and discontinue Product at any time without notice to you and this may affect information saved in your online "cart." Microflare will ship Product that have 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.
  8. Service and Support. Service offerings may vary from Product to Product. If you purchase optional services and support from Microflare, Microflare and/or your third-party service provider will provide such service and support to you in the United States in accordance with the terms and conditions. You may contact Microflare for more information, see www.microflare.com for contact information. Microflare and/or the third-party service provider may at their discretion, revise their general and optional service and support programs and the terms and conditions that govern them without prior notice to you. Microflare has no obligation to provide service or support until Microflare has received full payment for the Product or service/support contract you purchased. Microflare is not obligated to provide service or support you purchase through a third party and not Microflare.
  9. Limitation of Liability. MICROFLARE 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, MICROFLARE 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, MICROFLARE 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.
  10. Applicable Law; 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. Microflare has separate terms and conditions governing resale of Product by third parties and transactions outside the United States.
  11. Governing Law. THIS AGREEMENT AND ANY SALES THERE UNDER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES.
  12. Headings. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived there from.
  13. Binding Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND MICROFLARE, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, "Microflare") 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), Microflare'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). The arbitration will be limited solely to the dispute or controversy between customer and Microflare. NEITHER CUSTOMER NOR MICROFLARE 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. 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. Microflare will be responsible for paying any arbitration filing fees and fees required to obtain a hearing to the extent such fees exceed the amount of the filing fee for initiating a claim in the court of general jurisdiction in the state in which you reside. Each party shall pay for its own costs and attorneys' fees, if any. However, if any party prevails on a statutory 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. Information may be obtained and claims may be filed with the NAF at P.O. Box 50191, Minneapolis, MN 55405.
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Terms and Conditions of Loan Agreement for Past Due Payments

Acceptance of Loan: In return for this loan ("Loan") from Microflare, Inc. ("Lender" or "we" or "us"), you, the Borrower, promise to pay the Principal, plus interest (at the Interest Rate) on the unpaid balance of Principal to Lender or its assignees. The Principal includes the amount of the Microflare Order Total above plus the Processing Fee. Lender will pay the Microflare Order Total amount to Microflare Incorporated or its affiliates (hereinafter "Microflare"), for the purchase of products you ordered from Microflare (the "Products") as shown on invoice or original agreement. This written copy of the Loan Agreement may be provided to you (by electronic means or otherwise) as evidence of your indebtedness. YOU ACKNOWLEDGE THAT THIS LOAN AGREEMENT REPRESENTS BORROWER'S SIGNATURE PROVIDED TO US AUTOMATICALLY BY EXTENSION OF THE ORIGINAL PAYMENT TERMS DUE TO FAILURE OF PAYMENT(S) OR BY TELEPHONE BY A REPRESENTATIVE OF BORROWER WITH THE INTENTION OF BINDING BORROWER TO THE TERMS AND CONDITIONS OF THE LOAN. IF THERE IS ALSO A PERSONAL GUARANTOR ("GUARANTOR") OF THE LOAN, GUARANTOR ACKNOWLEDGES THAT THE PASS CODE, WITH THE LETTERS "PG" IN FRONT OF IT, THAT APPEARS AT THE BOTTOM OF THE LOAN AGREEMENT REPRESENTS GUARANTOR'S SIGNATURE AND THAT GUARANTOR AUTHORIZED US TO PLACE HIS OR HER SIGNATURE ON THE LOAN WITH THE INTENTION OF BINDING GUARANTOR. YOU (OR THE GUARANTOR IF APPLICABLE) MUST NOTIFY US THAT YOU DO NOT AGREE TO THIS LOAN AGREEMENT WITHIN 1 BUSINESS DAY AFTER YOU RECEIVE IT. AFTER 1 BUSINESS DAY, WE WILL AUTHORIZE MICROFLARE TO FULFILL YOUR PRODUCT ORDER. A BUSINESS DAY IS ANY DAY (EXCEPT SATURDAY, SUNDAY OR A LEGAL HOLIDAY) THAT COMMERCIAL BANKING INSTITUTIONS IN SALT LAKE CITY, UTAH ARE OPEN FOR BUSINESS. You acknowledge that use of the Principal under this Loan Agreement constitutes your acceptance of the terms contained in this Loan Agreement and that retention of the Products after receipt of a copy of this Loan Agreement shall constitute use of the credit offered. You acknowledge that Lender is relying upon the accuracy of the information you have provided during the application process. If Lender learns that this information is incorrect, inaccurate or misleading in any way, you agree that Lender may void this Loan Agreement and instruct Microflare not to ship the Products. You further acknowledge that this Loan is for business purposes and not for personal, family or household uses and that the Loan Agreement is a valid and binding obligation of the Borrower and the person accepting this Loan Agreement for Borrower is authorized to do so and that Borrower has full authority to enter into this Loan Agreement.

Payment Adjustment; Return of Products: You authorize us to adjust the amount of the monthly Payment (increase up to 15% or decrease) listed based on changes in the final amount of the Microflare Order Total (which is all amounts we have paid or will pay in connection with your order such as Shipping and Handling, changes by you in your Product order and changes in the amount of applicable Financed Sales Tax). The adjusted Payment will be in your monthly invoice. You may contact us to receive written confirmation of a Payment adjustment. You hereby assign to Lender the amount of any refund, credit (including taxes), discount, rebate or credit you receive for any Products that you return in accordance with Microflare's standard merchandise return policies. Lender will apply any such payment it receives from Microflare as a credit against your next Payment and all other amounts owed under this Loan Agreement, however, you agree that you shall continue to owe the unpaid amounts. You acknowledge that: (1) you selected the Products/Services and you will not assert any claims that you may have with respect to the Products/Service against Lender, and (2) you have an unconditional obligation to pay Lender under this Loan Agreement and you cannot withhold, set off or deduct Payments for any reason.

Payment and Interest: You understand that by accepting this Loan Agreement you will owe the Principal, plus interest at the Interest Rate shown above on the unpaid balance of Principal, to Lender. Interest begins to accrue five (5) days after the Products are shipped or Services have been received to you by Microflare (the "Commencement Date"). You will pay no interest or Processing Fee if you pay the entire Microflare Order Total dollar amount on or before the 60th day after the Commencement Date. Payments are in arrears with the first Payment due on the ninetieth (90th) day after the Commencement Date and following Payments will be due on the same day of each subsequent month. Payments will be applied first to the outstanding Payment, then to unpaid late and other charges. Lender will apply any payment it receives in excess of the Payment noted above as a credit against your next scheduled Payment and all other amounts owed under this Loan Agreement. Interest will be calculated on the scheduled balance based upon a 30/360-day basis. We reserve the right to compound interest.

Late Charges; Returned Checks: For each Payment not received in full within 5 days after the date the Payment is due, you must pay a late charge of 5% of the Payment that is due and unpaid or $25, whichever is greater. Your payment of a late charge or the acceptance by the Lender of a late payment does not excuse your default or mean that you can keep making Payments late. You agree to pay a charge of $25 for any check you give that is returned unpaid for any reason.

Prepayment: The Loan may be prepaid in whole, but not in part, at any time. If you pay in full the Microflare Order Total dollar amount on or before the 60t h day after the Commencement Date, you will pay no interest or penalties on the Principal or any Processing Fee. If you pay in full more than 60 days after the Commencement Date, then in addition to the next scheduled Payment due under the Loan, you will pay the then outstanding Principal balance of the Loan and all other amounts due and owing under or in connection with this Loan, together with a prepayment fee equal to $50.00.

Address for Payments: The address where Payments should be sent is on the first page of the Loan and will be noted on invoices.

Default: You will be in default if you do not make any Payment in full within 10 days after it is due. You will be in default if you gave false or misleading information on your application relating to this Loan Agreement. You will be in default if you do not keep any other promise you make in this Loan Agreement. If you are in default, the entire unpaid balance of both Principal and earned and unpaid Interest and a liquidated damages amount equal to 5% of the original Principal amount shall be immediately due and payable and the total unpaid balance (including all other amounts due under this Loan Agreement) shall bear interest at the Interest Rate shown above until paid in full. You agree to pay the reasonable fees of an attorney and collection costs we incur at any time in collecting amounts you owe under this Loan Agreement, including during any bankruptcy proceedings or upon any appeal.

Assignment: Lender may sell and assign this Loan Agreement and may do so without your permission. You may not assign your obligations under this Loan Agreement.

Entire Agreement: This Loan Agreement is a final expression of the agreement between you and Lender and may not be contradicted by evidence of any oral agreement or statement. Except for Payment adjustments as authorized above, any change in these terms and conditions must be in writing and signed by us.

Governing Law: This Loan Agreement is governed by the laws of the State of Utah, which is where the Lender is located, and applicable Federal law. If this applicable law does not allow all the agreements in this Loan Agreement, the ones that are not allowed will be void. The rest of this Loan Agreement will still be valid.

ARBITRATION: Either you, the Lender, or anyone to whom this Loan Agreement is assigned may choose to have any dispute arising under this Loan Agreement or the purchase of the Products resolved by binding arbitration. The party demanding arbitration may elect for the arbitration to be conducted under the rules then in effect of either the National Arbitration Forum ("NAF"); JAMS/Endispute; or the American Arbitration Association. Where available, the arbitration shall be conducted under the commercial rules of the selected forum, as amended by this Arbitration Clause.

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