Conditions of use

  1. “Customer” hereby agrees to purchase the Smog DADdy™ device (the “Device”). If selected, the Device Package shall include the computer, printer, bar code scanner, and cart sold with the Device in accordance with the terms and conditions described in this Agreement. The total purchase price for the Device Package shall be in accordance with the table set forth below.
  2. Payment. Payments for all products under this Agreement shall be made at the time of order. Customer shall pay all applicable sales tax, installation and shipping charges.  If Customer fails to make any payment when due, Applus may, in its own discretion, lock out and/or otherwise disable the Device.
  3. Availability.  Customer agrees that the Device is subject to availability.  Applus may cancel any order or any part of an order without cause at any time and without penalty, and Applus’ sole obligation shall be to return any Deposit paid by Customer. If Customer in breach of this Agreement, Applus may, at its discretion, require Customer to pay any remaining balance due. Applus shall retain the right to suspend performance of any service or update of the Device or require payment in cash, security or other adequate assurance satisfactory to Applus when, in its opinion, the financial condition of Customer, or other grounds for insecurity warrant such action.
  4. Delivery. The Device Package will be shipped to Customer F.O.B. Destination. Shipping will be prepaid and added to the total cost of the Device Package.  Applus assumes no liability for loss, damage or consequential damage due to delays. Delivery shall occur and risk of loss shall pass to Customer upon delivery of the products to the FOB point.
  5. Software.  (a) Customer acknowledges that the Products offered hereunder include embedded computer software (“Software”) and related technology which Applus, its affiliates or suppliers owns or licenses. During the term of this Agreement and upon full satisfaction of payment, Customer shall be granted a non-transferable, royalty-free license to use the Software in object code form only. The foregoing license is limited to the use of any Device containing the Software only in the manner authorized by Applus. Customer may not sublicense the Software to any other entity nor assign its license rights. Nothing contained herein shall cause Customer to acquire any right, title, or interest in the Software anywhere in the world, except as authorized herein. Notwithstanding the above, in the event Customer transfers title to the Device containing the Software, this license shall transfer to Customer’s transferee. (b) This license shall continue until the license is terminated in accordance with this Agreement, or for the useful life of the Product in which the Software is embedded or of which the Software is an integral part, or the useful life of the Software, whichever is longer. Removal of the Software, service by any unauthorized person, use of the Software on any product other than that for with it was obtained or authorized, or any breach of this license by Customer shall automatically terminate this license.
  6. Warranty.  Applus warrants each new Applus® product purchased pursuant to this Agreement to be free of defective material and workmanship under proper use and service, in accordance with the terms of the warranty statement published by Applus in effect at the time of acquisition of the product. Except as specifically provided in a written warranty statement provided with the products, APPLUS MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR PARTICULAR OR SPECIAL PURPOSES. APPLUS SHALL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE CAUSE. Customer acknowledges and agrees that the limited remedies provided for in Applus’ published warranty statements for the products shall constitute the entire warranty provided for the products and any breach thereof.
  7. Returns.  The Device Package shall not be returned to Applus without its written consent. Only defective product accompanied by a Return Merchandise Authorization shall be accepted by Applus for return. Applus’ sole responsibility to Customer shall be to replace the defective component at no charge to Customer.
  8. Indemnification.  Customer shall bear all risk of theft, loss, or damage not caused by Applus or authorized Applus dealers, for all product acquired pursuant to this Agreement. Customer agrees to indemnify, defend, and hold Applus, its officers, directors, employees and agents, harmless from all loss, liability, claims or expenses (including reasonable attorneys’ fees) arising out of Customer’s use of the Device or its components or the items sold with the Device, including but not limited to liabilities arising from bodily injury including death, or property damage to any person, unless caused as the result of a negligent or intentional act of Applus or an authorized Applus dealer.
  9. Applicable Law.  This Agreement shall be governed in accordance with the law of the State of Illinois, without regard to its choice of law provisions. In the event of litigation or other proceedings by Applus to enforce or defend any term or provision of this Agreement, Customer agrees to pay all costs and expenses sustained by Applus, including but not limited to reasonable attorneys’ fees.
  10. Assignment. Customer shall not assign this Agreement without the prior written consent of Applus, which consent shall not be unreasonably withheld.
  11. Force Majeure. Neither party shall be responsible for delays or failure in performance of this Agreement (other than failure to pay any amounts due) to the extent that such party was hindered in its performance by any act of God, civil commotion, labor dispute, unavailability or shortages of materials or any other occurrence beyond its reasonable control.
  12. Applus’ Agents.  Customer acknowledges that it has been advised that no agent, employee, representative or dealer of Applus has any authority to bind Applus to any affirmation, promise, representation, or warranty concerning any of the products and, unless such affirmation, promise, representation, or warranty is specifically set forth in this Agreement or any End User License Agreement embedded in the Software, it does not form a basis of this bargain and shall not be enforceable against Applus.
  13. Originals. Facsimile signatures and signatures transmitted electronically shall be accepted as original signatures. Placement of any orders or the transaction of any business by electronic medium shall be subject to the terms of this Agreement.
  14. Severability.  If any provision of this Agreement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of the remaining provisions of this Agreement.