|1. RELATIONSHIP OF PARTIES. Smile Business Products, Inc. (SMILE) is an independent contractor. No employment, agency or joint venture relationship is created by any agreement for products or services (Agreement) with SMILE. Further, (a) SMILE shall retain independent professional status throughout the term of any agreement and shall use its own tools and discretion in performing the tasks assigned, including manners, methods and times of such performance, (b) SMILE’s employees are not employees of Client and are ineligible for any Client employee benefits, (c) SMILE will report as income to the appropriate government agencies all compensation received pursuant to any Agreement and will pay all applicable taxes. Client will not make deductions from its fees to SMILE for taxes, insurance, bonds or any other subscription of any kind.
2. SALE OF TANGIBLE PRODUCTS AND SERVICES. SMILE reserves the right to submit Customer’s application to a third party leasing company of its choice for the purposes of financing the sale of tangible products and services to Customer. In the event of acceptance of the Customer’s application by the leasing company, Customer agrees to cooperate with SMILE and said leasing company in the execution of all documents and compliance with all further additional reasonable conditions imposed by said leasing company, if any, to complete the financing transaction. Upon the execution of a financing agreement or receipt of payment, SMILE shall transfer and deliver to Customer and Customer shall accept those tangible goods and services and only those tangible goods and services represented (a) on the sales document acknowledged in writing by the Customer or (b) ordered by the Customer on the SMILE website using their unique username and password. Identification of goods under Section 2501 of the Commercial Code shall occur at the moment goods are delivered to and accepted by Customer. SMILE reserves the right to cease providing services or repossess goods in the event that Customer does not provide good and timely payment according to the payment terms specified on the Customer invoice provided by SMILE. ALL SALES ARE FINAL AND NOT RETURNABLE OR EXCHANGEABLE. ALL GOODS ARE SOLD “AS IS” UNLESS OTHERWISE PROVIDED IN THESE TERMS AND CONDITIONS OR IN WRITING UNDER A SEPARATE AGREEMENT SIGNED BY BOTH CUSTOMER AND AN AUTHORIZED AGENT FOR SMILE. Buyer agrees not to sell, assign or dispose of tangible products or services under this agreement until payment in full has been made to SMILE. Subject to SMILE’s discretion and approval, supply items, currently stocked by SMILE, unused and in their original packaging may be returned subject to a 25% restocking fee.
5. TERMS AND ACCEPTANCE. Any agreement (see Item 4 for types) shall become effective upon receipt of payment of the first invoice billing, and shall continue for one full year (365 days). Payment of each invoice verifies customer acceptance of the General Terms and Conditions on the reverse side of every invoice as the General Terms and Conditions may change from time to time. SMILE reserves the right to change its General Terms and Conditions from time to time as business conditions dictate, and considers the publishing of its General Terms and Conditions on the back of every invoice as well as on its website to be adequate notice to customers of any such changes. All agreements (see Item 4 for types) automatically renew on the anniversary date, and are subject to a renewal increase. A renewal invoice is considered to be adequate notification to the Customer of changes in agreement rates, terms and conditions. Payment of a renewal invoice verifies customer acceptance of any revised rates, terms and conditions.
|caused by use of incompatible supplies, toner brands not approved by SMILE, or copy paper not in compliance with manufacturer’s specification. e) Complete unit replacement or overhauling the covered Equipment (unless otherwise specified). f) Electrical work external to the covered Equipment or maintenance of accessories, attachments or other devices not furnished by SMILE g) Increase in service time or repeat calls caused by Customer denial of full and free access to the Equipment or denial of departure from Customer’s site h) Connectivity, application, printer driver, or any network device support in relation to any product sold by Smile (unless otherwise specified). i) Connectivity, application, printer driver, any networked device, any locally connected printer or copier, desktop operating system, network operating system or software not sold by SMILE (unless otherwise specified). j) Training beyond the initial key operator training given upon installation of the Equipment (unless otherwise specified). k) Replenishment of toner, staple cartridges or paper, or emptying toner collection bottles. l) Maintenance agreements do not include toner collection bottles, staples or paper (unless specifically noted in writing and on the invoice). The foregoing items excluded from maintenance service, if performed by SMILE, will be charged to the Customer at Smile’s applicable time and materials rates and terms then in effect.
9. WARRANTY. For new equipment purchased from SMILE where a maintenance agreement is not purchased at the time of sale, any repairs required within 90 days of purchase will be performed under a manufacturer warranty that includes only labor and materials to diagnose and/or replace a defective part. There are no other express warranties made in respect to the goods provided by SMILE. If any model or sample was shown to Customer, that model or sample was used merely to illustrate the general type and quality of goods and not to represent that the goods would necessarily conform to the model or sample. THE GOODS SOLD UNDER ANY SMILE AGREEMENT ARE PURCHASED BY CUSTOMER “AS IS” AND SMILE DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. INVOICE CHARGES. Customer agrees to pay invoices for products and services within the terms stated on the invoice in accordance with a signed sales proposal, a signed sales order, an online purchase made through SMILE’s password secured website, and/or a signed agreement (see item 4 for types). In the event Customer fails to make any payment due on the date specified on the invoice, Customer agrees to pay a late charge of 18% of the payment otherwise due. A fee of $25 shall be charged for each returned check or declined credit card charge. Customer also agrees to pay for overage charges (if any or if applicable) that may be incurred at the end of each billing cycle, plus applicable sales taxes.
11. METER READINGS. Where required to insure accurate invoicing, meter readings shall be provided by Customer at the request of SMILE, or Customer shall agree to have remote meter gathering software installed by SMILE. Failure to submit meter readings in a timely manner will allow SMILE, at its discretion, to estimate the meter and bill Customer accordingly, or to dispatch a technician to the Customer’s location to retrieve an accurate meter reading. Each time it is necessary for a technician to be dispatched to the Customer’s location to retrieve a meter reading, Customer agrees to pay SMILE a $60 meter retrieval fee per machine.
12. EXCESSIVE TONER USAGE. With respect to toner included maintenance or rental agreements, SMILE reserves the right to charge Customer for toner requested during the term of this Agreement in excess of the manufacturer’s specified yield for the number of copies or images run by Customer.
13. TONER SHIPPING CHARGES. All toner is shipped via UPS ground when ordered by the Customer at the shipping and handling rate then in effect, unless Customer is under an agreement that includes a SMILE Support Fee, in which case, the shipping charges are waived. If Customer is within a 15-mile radius of any SMILE location and requests a same day emergency delivery, a delivery fee at Smile’s current per call rate will be charged.
14. POWER FILTER. If a power filter is provided in an agreement as part of a SMILE Support Fee this power filter will remain the sole and exclusive property of SMILE. The Customer agrees that the power filter will remain on the equipment at the Customer’s facility as long as a SMILE maintenance agreement with a SMILE Support Fee is in force. If the maintenance agreement is allowed to lapse, as evidenced by a cancellation letter sent to Smile by the Customer or by non-payment of maintenance agreement billings, the Customer agrees to allow a service technician access to the equipment to retrieve the power filter. If a power or data line related incident causes irreparable damage to the Customer’s equipment while a SMILE power filter is in use, the Customer will receive a replacement machine of like features at no charge. The specific terms and conditions for replacement machine are available upon request. If a SMILE power filter is lost or removed from the installed site, the Customer agrees to pay a replacement fee of $150.00
15. TRANSFER OR MOVEMENT OF EQUIPMENT. Any transfer or movement of covered equipment to another location outside of SMILE’s service area will exclude the equipment from service under any agreement (see Item 4 for types). Customer is responsible for notifying SMILE immediately if Customer has transferred or moved any covered equipment to a different location.
16. TRANSFER OR ASSIGNMENT OF AGREEMENT. This Agreement may not be assigned by the Customer without prior written approval by SMILE. Any attempted assignment in violation of this provision shall be void. SMILE reserves the right to delegate its duties under this Agreement to one or more independent contractors. This Agreement is also fully assignable by Smile without prior written consent of Customer.
17. DATA SECURITY. In order to protect Customer’s and Customer’s client’s confidential information and comply with applicable laws, SMILE strongly recommends that all data from all disk drives or magnetic media in computers and multifunction equipment be securely removed prior to the disposal of such equipment. Customer is responsible for selecting the appropriate removal standard to meet their business needs. SMILE is not responsible or liable for any damages that may arise from Customer’s failure to comply with this provision. SMILE offers certain methods of data removal at chargeable rates. Data removal is not included as part of any SMILE agreement (see Item 4 for types).
18. ENTIRE AGREEMENT. This agreement to general terms and conditions supercedes and terminates any and all prior terms and conditions agreements, if any, whether written or oral, and all communications between the parties with respect to the subject matter of this agreement. The Customer agrees that it has not relied on any representation, warranty, or provision not explicitly stated in this agreement, that no oral statement has been made to it that in any way tends to waive any of the terms or conditions of the agreement, and that this agreement constitutes the final written expression of all general terms and conditions of the agreement, and it is a complete and exclusive statement of those terms and conditions. These general terms and conditions shall prevail notwithstanding any additional or different terms and conditions of any purchase order or other document submitted by Customer in respect to the services to be provided hereunder. No variation or modification of this Agreement, whether by the Customer’s purchase order or otherwise, and no waiver of any of the Agreement’s provisions or conditions shall be binding unless in writing and signed by duly authorized agents of SMILE and Customer.
19. GOVERNING LAW; JURISDICTION; VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Customer irrevocably consents to the jurisdiction and venue of the state and federal courts located in Sacramento, California in connection with any action relating to this Agreement. If any legal action is necessary to enforce this agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and expenses in addition to any other allowable relief.
20. SEVERABILITY; SURVIVAL OF TERMS. Should any term in this document be deemed unenforceable, that fact shall not preclude the enforceability of all remaining terms. Terms 1,2,3,4,5,6,8,9,14,17,18,19,20 shall survive the cancellation or termination of any agreement with SMILE.
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