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TERMS OF USE
Welcome to the website (the “Site”) for the Accessory Center. It is a web-based access point for the Accessory Center. This Site is owned and operated by the Brightstar Corporation (“Brightstar” or “We”). All usage of this site, its contents and the services provided through this Site (“Services”) is subject to these Term of Use (“Terms”). These Terms apply to all users of this Site (“User” or “You”). Brightstar may own or operate other Web sites that are governed by different terms of use.
Please read these Terms carefully. You are encouraged to print or otherwise make a copy of the Terms for your records
By clicking the “I Agree” button at the end of these Terms, you will also be creating an electronic record that is evidence that you (which includes your firm, company or other organization and all other users belonging to such entity from whom you have the authority to act in this regard) have agreed to be bound by these Terms in the same manner as a signed, written contract and that you have made or received a copy of these Terms.
Until we have this electronic record you will not be able to use this Site.
Whenever these Terms are amended in a material way, a notice will be posted on this Site. Your continued use of the Site will signify your acceptance of the change in the Terms. The current version of the Terms will normally be available for your reference from a link at the bottom of the home page of this Site. We may also request that you execute electronically an amended version of these Terms.
1. CERTAIN DEFINTIONS
(a) An “Affiliate” of a Person means and includes any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Person. For purposes of this definition, "control," when used with respect to such other Person, means the power to direct the management and policies of such other Person, directly or indirectly, whether through the ownership of voting securities, by contract, or otherwise; and the terms "controlling" and "controlled" have the meanings relative to the foregoing.
(b) “Authorized Representative” means any director, officer, employee, agent, or other representative of Brightstar or an Affiliate of Brightstar.
(c) “Content” means Documentation, Marks, images, charts, graphs, graphics, designs, photographs, audio and video clips, software, and HTML, XML and similar code.
(d) “Documentation” means, if issued by Brightstar, any tutorial, frequently asked questions, help files, and other information that may be made available by links on this Site or through a help desk on the operation and administration of the Accessory Center.
(e) “Marks” means trademarks, service marks, logos and names and titles, of and associated with Brightstar or an Affiliate of Brightstar.
(f) “Person” means any individual, partnership, limited liability company, corporation, trust, estate, association, or any other legal or commercial entity.
2. DESCRIPTION OF SITE
This Site is intended to offer, through Accessory Center, a platform utility whereby Users may obtain or arrange for Services that include the ability to order products and to access links to various third-party web sites. Accessory Center supports a wide variety of product lines. Additional Services and product lines may be added, and not all Services and product lines may be available at any given time.
3. GENERAL AND ADMINISTRATION OF USE OF SITE AND THE Accessory CENTER
(a) You agree to use this Site and the Accessory Center in accordance with these Terms, as it may be modified from time to time. Your use of this Site and Accessory Center will at all times comply with all applicable federal, state, and local laws and regulations.
(b) The Accessory Center, and all related computer systems, procedures, and databases created, operated, maintained or accessed by us and our Affiliates in connection with providing the Services, contain proprietary and confidential information of substantial economic value to us and our Affiliates. Any unauthorized use, misuse, or disclosure of such information is strictly prohibited and may result in civil liabilities and criminal penalties under applicable law.
(c) The accuracy, completeness and timeliness of all information provided to us by you via the Accessory Center are your sole responsibility. You are responsible for all activities occurring under your accounts that are due to your conduct or inaction. You are responsible for verifying the accuracy of transactions as entered and for information as received.
(d) You represent to us that (i) you have obtained all necessary authorization to enter into, and be bound by, these Terms either for yourself or on behalf of your firm, company or other organization, as applicable, and to request each transaction requested by you; (ii) each transaction requested by you relates only to Services that you are entitled to receive through the Accessory Center; and (iii) you are using the Accessory Center from within the United States and will order only for delivery within the United States.
(e) We are authorized, without further inquiry, to provide Services and to release Content in accordance with a transaction request received by us if we receive apparently proper identification as may be specified in the Documentation. In no case are we responsible for verifying apparently proper identification that is presented to us. Notwithstanding the foregoing, we may require partial or full documentation or other verification before effecting any transaction whenever we, in our sole discretion, deem obtaining such documentation or other verification to be appropriate or desirable and shall not be liable for any loss due to a delay resulting from such request. You acknowledge that we may exercise this discretion more readily in certain cases, such as meeting our obligations under any applicable anti-money-laundering or similar law, regulation or policy.
(f) If you discover that you have obtained access to information on the Accessory Center that you do not have authority to access, you agree to immediately terminate such access and inform us.
(g) The prices advertised on the Accessory Center are for Internet orders. Prices on some items may differ from those charged for other order entry methods. Prices and the availability of items are subject to change without notice. No price protection applies. We reserve the right to limit sales, including the right to prohibit sales at our discretion.
(h) By requesting information through the Accessory Center, You consent to the transmission of the requested information (which may include mobile telephony unique identifier information) through the Accessory Center and assume all risks of such transmission.
4. RELATION TO OTHER AGREEMENTS OR DISCLOSURES
Your relationship with us is governed by agreements in addition to these Terms, including a written credit application and sales agreement.
(a) The Terms of Sale attached hereto as Exhibit A apply to all orders placed on the Accessory Center. If you do not agree with, or are not authorized to accept, or choose not to accept these Terms of Sale, you are not authorized by Brightstar to place an order on the Accessory Center.
(b) Where a written purchase agreement signed by a buyer and Brightstar exists, this Accessory Center shall serve only as a means of placing orders, and terms in the existing written agreements which are inconsistent with or which conflict with the Terms of Sale shall prevail. A “written purchase agreement” signed by a buyer and Brightstar does not include purchase orders, order acknowledgements or confirmations, or similar documents.
(c) If there is any conflict between any provision of these Terms and a provision a more specific agreement or agreements with us related to the same matter, then the conflicting terms (and only the conflicting terms) of the other more specific agreement(s) will prevail.
5. NOTICES, COMMUNICATIONS, AND ELECTRONIC SIGNATURES
You agree to be bound by any affirmation, assent or agreement you transmit through the Accessory Center, including but not limited to any consent you give to receive communications from us solely through electronic transmission. You agree that, when in the future you click on an "I agree," "I consent" or other similarly worded "button" or entry field with your mouse, keystroke or other device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.
6. RESTRICTIONS ON USE
Unless you have obtained our prior written permission, you may not do any of the following or permit any other Person under your authority or control do so:
- Copy, reproduce, republish, upload, post, transmit, or distribute in any way material from this Site in any manner inconsistent with the purposes for which it is offered by Brightstar to its Users.
- Use or encourage the use of the Accessory Center, this Site or any Content for any unlawful or unauthorized purpose.
- Violate or infringe the rights of third parties, including copyright, trademark, patent, rights of privacy or publicity, or any other proprietary right.
- Transmit any advertising or promotional materials, including without limitation, "junk mail," "surveys," "spam," "chain letters," "pyramid schemes," or any other form of solicitation or unauthorized communication.
- Copy, modify, or display our name, trademarks, or logo or those of any Affiliate of ours, or any text, graphic images, or other Content from this Site.
- Use devices (including software) that are designed to provide repeated automated access to this Site or probe, scan, or test the vulnerability of any system or network related in any way to this Site.
- With the exception of web browser software, or other applications approved by Us, use any software, program, application or any other device to access or log on to the Accessory Center, including our computer systems, or to automate the process of obtaining, downloading, transferring or transmitting any Content from Accessory Center, including our computer systems.
- Include any Mark, the name of any of our personnel, or any variation of any of the foregoing, as a metatag, hidden textual element, or any other indicator that may create a false or misleading impression of affiliation, sponsorship, or endorsement between any User and/or website and the Accessory Center.
- Collect or store personal data about other Users of this Web site.
- Transmit any material that contains any computer code or files that might interrupt, limit or interfere with the functionality of any computer software or hardware of telecommunications equipment.
- Use any electronic communication feature of the Accessory Center for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, hateful, offensive, or sexually explicit.
- Create a link from a web site to any page of this Site unless the user or the operator of the other web site has executed our then standard agreement for the granting of permission to establish such a link.
7. MONITORING OF SITE
We reserve the right to monitor any and all use of this Site. We are under no obligation to do so and assume no responsibility or liability arising from our doing so or omission to do so. We and our Affiliates and Authorized Representatives may monitor your use of this Site to evaluate the quality of service you receive, your compliance with these Terms, the security of this Site, or for other lawful reasons. You agree that you will not be entitled to any cause of action or other right with respect to us or our Affiliates or Authorized Representatives concerning such monitoring activities.
8. DISCLAIMERS
Contents of the Site – Disclaimer
THE MATERIALS ON THIS SITE AND ANY MATERIALS MADE AVAILABLE ON OR THROUGH THE Accessory CENTER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BRIGHTSTAR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
NEITHER BRIGHTSTAR NOR ANY AFFILIATE OR AUTHORIZED REPRESENTATIVE OF BRIGHTSTAR WARRANTS OR MAKES ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS IN THIS SITE IN TERMS OF THEIR COMPLETENESS, ACCURACY, RELIABILITY, TIMELINESS OR OTHERWISE. THE MATERIALS IN THIS SITE COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS.
CERTAIN LINKS IN THE WEB SITE MAY LINK THE USER TO OTHER SITES ON THE WORLD WIDE WEB. THE LINKED SITES ARE NOT UNDER THE CONTROL OF BRIGHTSTAR OR ANY AFFILIATE OR AUTHORIZED REPRESENTATIVE OF BRIGHTSTAR AND NONE OF SUCH PERSONS IS RESPONSIBLE FOR THE CONTENTS OF ANY LINKED SITE OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY CHANGES OR UPDATES TO SUCH SITES.
Operation of the Site – Disclaimer
AS TO THE OPERATION OF THE SITE, BRIGHTSTAR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BRIGHTSTAR MAKES NO WARRANTY THAT (i) THE OPERATION OF THE SITE WILL MEET THE USER’S REQUIREMENTS OR EXPECTATIONS; (ii) ACCESS TO THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE OF UNAUTHORIZED CODE OR OTHER HARMFUL COMPONENTS, OR FREE OF ERROR OR MALFUNCTION; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE; OR (iv) ERRORS OR DEFECTS WILL BE CORRECTED.
9. LIMITATION OF LIABILITY
UNLESS DUE TO WILLFUL TORTIOUS MISCONDUCT OR GROSS NEGLIGENCE, NEITHER BRIGHTSTAR NOR ANY AFFILIATE OR AUTHORIZED REPRESENTATIVE OF BRIGHTSTAR SHALL HAVE ANY LIABILITY IN TORT, CONTRACT OR OTHERWISE (AND AS PERMITTED BY LAW, PRODUCT LIABILITY) TO USERS OR ANY THIRD PARTY.
UNDER NO CIRCUMSTANCES SHALL BRIGHTSTAR OR ANY AFFILIATE OR AUTHORIZED REPRESENTATIVE OF BRIGHTSTAR BE LIABLE TO A USER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUE, INCOME, GOODWILL, USE, DATA, TIME OR OTHER INTANGIBLE LOSSES) THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE Accessory CENTER, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF, OR THE INFORMATION AVAILABLE ON, THE Accessory CENTER.
NEITHER BRIGHTSTAR NOR ANY AFFILIATE OF BRIGHTSTAR, OR AUTHORIZED REPRESENTATIVE OF BRIGHTSTAR SHALL BE LIABLE TO A USER OR THIRD PARTY EVEN IF ANY OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
10. INDEMNIFICATION
You agree to indemnify, defend, and hold harmless Brightstar and any Affiliate or Authorized Representative of Brightstar from any claim, demand, loss, costs or expense, including attorneys’ fees and costs, made by any person arising out of your violation of these Terms or any other Person’s rights hereunder, including violation of any intellectual property or privacy right. Brightstar may, at its own expense, participate in any matter subject to indemnification by User, and User shall not settle any such matter in a manner prejudicial to the rights of Brightstar without the written consent of Brightstar, which shall not be unreasonably withheld.
11. PRIVACY AND SECURITY
For information on how we use and protect the personal information of certain Users that may be transmitted to this Site, please click on this link to Brightstar’s Privacy Policy and Security Statement. If you believe that the security of the Accessory Center may have been breached or your information on the Accessory Center may have been used without your authorization, please call us immediately at 1-(877) 727-4448.
12. INTELLECTUAL PROPERTY
Permission is granted to display, copy, distribute, download, and print portions of the Contents for the purpose of conducting business with Brightstar, provided that you comply in all respects with this Section. This permission terminates automatically if you breach any of these Terms.
(a) General. You acknowledge and agree that any and all intellectual property rights associated with the Accessory Center, whether now existing or arising in the future and including such rights with respect to any name or mark that we may develop for, or use in connection with, the Accessory Center, is and will be owned by us or their respective owners, and nothing in these Terms gives or is intended to give you or any User any claim to or rights in such intellectual property.
(b) Content. The following restrictions apply to the Content:
(i) You agree that the Content is our property or the property of our licensees (as the case may be) and is subject to protection by U.S. and international intellectual property laws.
(ii) Subject to these Terms, and except as expressly indicated otherwise herein or on this Site, you agree not to download, copy, store, manipulate, reformat, modify, adapt, reproduce, retransmit, distribute, circulate, display, publish, distribute, perform, sell, rent, print or create derivative works from, or make any other use of the Content (or any portion thereof) without our prior written approval. The preceding sentence prohibits you from, among other things, posting any Content to forums, list services, newsgroups, mailing lists and electronic bulletin boards without our prior written approval.
(iii) To the extent approved by us, you are authorized to use and download materials that are made available on the Site only for the your own needs. You may not use, distribute, modify, transmit, or post any Content obtained from the use of the Site or any functions of the Site for public or commercial purposes without our express written permission. Specifically, you are not authorized to resell access to any such materials or to redistribute or facilitate the redistribution of any such materials for sale to others. You may not delete copyright or other intellectual property rights and proprietary notices from printouts of electronically accessed materials.
(c) Marks. Nothing contained in these Terms or this Site should be construed as granting any license or right to use any of the Marks displayed on this Site. Any unauthorized use of the Marks or any other Content is strictly prohibited. You agree that the Marks may not be used in connection with any product or service that does not originate with us or our Affiliates, in any manner that is likely to cause confusion among Users, or in any manner that disparages or discredits us or our Affiliates.
(d) Information Transmitted by User. User agrees that any material, information, and ideas that User transmits to Brightstar shall be and remain Brightstar's property. All such transmissions will be treated as non-confidential and non-proprietary. Brightstar shall be under no obligation of any kind with respect to such transmissions and shall be free to reproduce, use, disclose, and distribute such transmissions to others in any manner that does not reveal User’s identity.
13. MODIFICATIONS, SUSPENSIONS AND TERMINATIONS
Any right granted to you in these Terms terminates immediately upon any violation of it by you. We reserve the right to suspend or terminate your access to the Accessory Center at any time without giving notice or a reason for such suspension or termination. We reserve the right to modify or discontinue all or any portion of the Accessory Center or any function made available thereby at any time without prior notice. We may block access to the use of all or any portion of the Accessory Center or any function of the Accessory Center without prior notice in the event we elect to discontinue such service on a temporary or permanent basis or in the event that you breach this Agreement. We reserve the right to block access to all or any portion of the Accessory Center if we have reason to believe that the general security and/or integrity of the system is being threatened or compromised. The Accessory Center may be unavailable at times due to no fault of ours.
14. JURISDICTION AND APPLICABLE LAW
Unless otherwise specified, we control and operate this Site from our offices within the United States of America. The services and products described and information provided through this Site are directed to, and are not intended for distribution to, or use by, any Person in any jurisdiction where such distribution or use would be contrary to law or regulation or that would subject us or any of our Affiliates or Authorized Representatives to any requirement within such jurisdiction that we deem burdensome. Persons who access this Site do so on their own initiative, and are responsible for compliance with applicable local laws or regulations.
This Terms and any dispute of any type that may arise between a User and Brightstar and its Affiliates and Authorized Representatives concerning the use of this Site will be governed by the statutes and laws of the State of Illinois, United States of America, without regard to conflicts of laws principles thereof. If you take legal action relating to this Terms, you and we consent and agree to submit to the exclusive personal jurisdiction and venue of the courts of Illinois and the United States District Court for the Northern District of Illinois with respect to such matters.
15. MISCELLANEOUS
(a) If any provision of these Terms are deemed unlawful, void, or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of the remaining provisions.
(b) The heading of the provisions hereof are for descriptive purposes only and will not modify or qualify any of the rights or obligations set forth in such provisions.
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Terms of Sale
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1.
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Payment
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Payment terms are as by Brightstar for Buyer's account
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2.
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Delivery
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Unless otherwise specifically agreed by Brightstar in writing, all shipments are made FOB Shipping Point, freight prepaid by Brightstar and added to Buyer's invoice, and shall be delivered via a common or contract carrier selected by Brightstar. Delivery of the shipment to a carrier, whether specified by Buyer or not, shall constitute delivery to the Buyer. Deliveries may be made in installments. Future delivery dates are estimates only.
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3.
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Title
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Title to the goods shall remain with Brightstar until Brightstar delivers the goods to a common or contract carrier. All goods are shipped at Buyer's risk. Any claim for loss or damage in transit should be made against the carrier. Buyer shall immediately notify Brightstar of such claims.
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4.
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Inspection
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Buyer must notify Brightstar, in writing, within 96 hours of the invoice date of: (i) any shortages or discrepancies existing between the items charged to Buyer and the goods actually received by Buyer; (ii) any damages to the goods; and/or (iii) any objections to the terms or total amount of the invoice. If written notice of such shortage or discrepancy, damage or other objection is not received by Brightstar within that time, the Buyer shall be deemed to accept the goods in accordance and in compliance with all the terms, conditions and specifications of the invoice, and Buyer agrees to pay the total amount charged on the invoice
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5.
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Returns
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A return authorization must be obtained prior to any merchandise being returned to Brightstar. The merchandise returned will be repaired, replaced or credited at the sole discretion of Brightstar. All transportation charges for returned goods must be prepaid by Buyer. Items accepted for return may be subject to a minimum 20% restocking charge. All returns must be in the original container and packaging, and Buyer must provide proof of purchase
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6.
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Warranties
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Any description of the goods made in connection with this transaction is for the sole purpose of identifying the goods, is not part of the basis of the bargain, and does not constitute a warranty that the goods shall conform to that description.
The goods are purchased by Buyer "As Is" and with all faults. Brightstar does not warrant that the goods are of merchantable quality or that the goods are fit to be used for any particular purpose desired by Buyer.
Claims for defects in or failure of the goods must be made with the manufacturer. Brightstar is not responsible and shall have no liability for any defect in or failure of the goods.
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7.
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Standard Terms
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All sales are expressly conditioned on Buyer's agreement to the standard terms and conditions stated herein. Brightstar hereby gives notice of its objection to any different or additional terms not expressly agreed to in a writing signed by Brightstar.
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8.
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Limitation
of Liability
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Brightstar shall not in any event be liable to Buyer for any special, incidental, punitive, consequential, or any other indirect loss or damage arising out of the sale of the goods to Buyer or the use, performance or nonperformance of any of the goods, whether in an action for or arising out of breach of contract, tort or otherwise. Brightstar's entire liability for any claim or loss from any cause whatsoever shall in no event exceed the repair or replacement cost or purchase price, at Brightstar's sole option, of the goods that directly give rise to the claim.
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9.
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Law
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These Terms of Sale shall be governed by, construed, interpreted and enforced in accordance with the laws of the United States and the State of Illinois, excluding conflicts of law provisions and the Convention on Contracts for the International Sale of Goods.
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10.
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Buyer's
Authorization
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Submission of an order through or on the Accessory Center constitutes Buyer's acceptance of and agreement with these Terms of Sale, and also constitutes the following representations and warranties of Buyer: (1) Buyer is using the Accessory Center from within the United States; (2) Buyer will order only for delivery within the United States; and (3) the individual user is authorized to accept these Terms of Sale and to place orders on behalf of Buyer.
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11.
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Credit/Debit Card
Charge Back
Policy
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The Buyer understands, acknowledges and agrees that by initial and continued use of the Accessory Center constitutes acceptance and agreement with our Credit/Debit Card Charge-Back policy. It is the policy of Brightstar to report all forms of credit/debit fraud to the appropriate legal authorities and to vigorously prosecute individuals and/or companies that commit fraud by means of charge-backs, use of fraudulent cards or other forms of credit/debit card fraud.The Buyer understands, acknowledges and agrees that Brightstar will apply and invoice a charge-back processing fee of $50.00 to the account balance for each credit/debit charge-back related to product and/or services provided by Brightstar.
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Copyright 2010 Brightstar Corp. All rights reserved.
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