USAGE...

TERMS OF USE
Acceptance By You of These Contract Terms
Set forth below are the terms and conditions of the agreement between you and SMS Data Products Group, Inc. ("SMS"). Your access of and use of any of SMS’s Web Sites ("Web Site") is an acknowledgement by you that you have read, and understand the terms and conditions of this agreement and that you agree to be bound by these terms and conditions. If you do not agree to these terms and conditions, do not access or use SMS’s Web Site.

Compliance With the Law
You agree to abide by all applicable laws and regulations in the use of this Web Site. This includes all U.S. export and re-export control law.

SMS operates the Web Site and the server that supports the Web Site in Fairfax County, Virginia, United States of America. SMS believes that its Web Site is in full compliance with all laws and regulations applicable to Fairfax County, Virginia. If you access this Web Site from outside Fairfax County, Virginia, you are responsible for compliance with all of your local jurisdiction's or governing authority's laws and regulations applicable. If in accordance with local law or authority, your use of the SMS Web Site is illegal or if in accordance with that law access to the content of the Web Site is prohibited, you are responsible for compliance with those laws. You are advised not to access SMS’s Web Site if it is in any way prohibited in your local jurisdiction or governing authority.

Governing Law and Jurisdiction
The laws of Virginia shall govern any dispute or claim with respect to SMS’s Web Site and the purchase of any product or service through the use of this Web Site. You agree that jurisdiction and venue for any dispute or claim involving SMS’s Web Site or the purchase of any SMS product or service shall be either Fairfax County, Virginia, or the Federal District Courts in Northern Virginia. You agree that you will not dispute this jurisdiction and venue and you will not bring any legal claim to a court or judicial body outside of Virginia.

Limited License
Copyright laws, Trademark laws, and other laws protect this Web Site and all the information contained on this Web Site. Except as specifically permitted by this limited license, without prior written authorization you may not reproduce, modify, publish, create derivative works, transmit, display, or otherwise distribute or use, by any means, any portion of the information or data on the SMS Web Site.

You are authorized to display, copy, download, and use any information or data on the Web Site solely for non-commercial and personal use. Except where the Web Site specifically requests that you provide information, you may not modify any of the information on the Web Site or create derivative works. You are NOT permitted to use any of the Web Sites for commercial or public information without specific written authorization. To the extent that you create any derivative work from the Web Site, you grant the owners of the copyrights an exclusive license in those derivative works. You agree to retain with all licensed information all copyright, trademark, or other notices found on the SMS Web Site.

SMS reserves the right to terminate this license at any time, with or without notice and with or without cause. Should you breach any of the terms of SMS’s Terms of Use, your license shall terminate immediately without notice. Where your license has terminated for any reason, you agree to return all information subject to this license, or as directed by SMS, destroy the licensed information.

Nothing in the Web Site or this limited license shall be construed as granting you any ownership in any proprietary rights of SMS or any third party. Should you breach the terms of this license, you agree to pay the cost, including reasonable attorney’s fees, of SMS’s enforcement of its license.

Warranty Disclaimer
ALL INFORMATION PROVIDED ON SMS’S WEB SITE IS PROVIDED "AS IS" WITH ALL FAULTS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. SMS AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL SMS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO USE, THE MATERIALS ON THIS WEB SITE, EVEN IF SMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF MATERIALS FROM THIS WEB SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Information Sent By You
Where you transmit any information or data to SMS, or post any information or data on SMS’s Web Site, the information will be considered non-proprietary and non-confidential. SMS may use or disseminate any of the information or data provided by you in any manner and for any purpose whatsoever. You may not post any information or data that could give rise to any civil or criminal liability under the law or is scandalous or pornographic.

Links to Third Party Web Addresses
SMS's Web Site may contain links to the web sites of third parties. In addition, third parties web sites may contain links to SMS's Web Site. These links are for your convenience only and SMS in no way endorses these web sites. SMS is not responsible for the content, accuracy, or reliability of any third party site. Your access to any other Internet site linked to or from this Web Site is at your own risk.

Revisions
These terms and conditions are subject to any change at any time without notice. Please review these terms and conditions for any changes. By using the SMS Web Site after any changes, you consent and agree to the revised terms and conditions.

Purchase of Product or Services
If you purchase a product or service through the Web Site, the following terms and conditions apply to that purchase. For purposes of these terms and conditions of purchase, you are the Buyer and your offer to purchase from SMS is the Sales Order.

TERMS AND CONDITIONS OF SALE

Order : The BUYER hereby orders from SMS Data Products Group, Inc. ("SMS") the products and/or services listed on the SMS Proposal, Quotation, or other associated documents (“Proposal”). This agreement and the Proposal shall only be binding upon SMS upon acceptance by SMS of your authorized order to SMS.

Price: The BUYER agrees to pay the total purchase price and or license fee according to the terms described in the Proposal. If no payment terms are listed in the Proposal, all payments shall be made upon delivery of the products or services. Due dates are from the date of delivery. In addition, BUYER agrees to pay any sales or other taxes levied on or measured by such purchase price or license fee, or arising from the use of the product(s) and parts or maintenance supplied, including without limitation, any additional sales, use, gross receipts, privilege, excise and personal property taxes unless otherwise specified. Prices provided herein do not, unless otherwise specified, include supplies (e.g., cassettes, diskettes, paper, primer, ribbons, ink, rollers, etc.). BUYER shall pay a penalty that is the lesser of 1.5% per month, or the maximum penalty permitted by law, for all overdue payments.

Delivery: For services, delivery shall take place at the location identified in the Proposal. For product, delivery shall take place at SMS’ facilities unless otherwise specified in the Proposal or documents referenced in the Proposal.

Inspection : BUYER shall inspect the product(s) and or service(s) at delivery and shall notify SMS of any defects or discrepancies in the product(s) or services. Unless BUYER notifies SMS in writing immediately of any defects of discrepancies, it shall be conclusively presumed, by BUYER and SMS, that: the services were properly performed and meet all applicable specifications; and that product(s) were delivered in good repair, were operable, and meet all applicable specifications; and that BUYER accepts the product(s) and/or service(s) as delivered.

Maintenance and Service: Where set forth in the Proposal, SMS agrees to provide maintenance and service to BUYER. Unless onsite service is specified in the Proposal, maintenance or service will be at SMS’ service department and shall not include the cost of any parts or supplies. All maintenance or service, except that performed under manufacturer's or supplier's warranty, will be performed at the rates set forth in the Proposal, or if none are specified, then current rate shall apply. BUYER is responsible for all freight, pickup, and/or delivery charges where SMS performs maintenance or service.

Limited Warranties:

• On all products or third party services, the manufacturer's or supplier's warranty is expressly given to BUYER upon delivery of said products or third party services. Except as expressly set forth in SMS’ Proposal, SMS DISCLAIMS ALL OTHER WARRANTIES OF ANY THIRD PARTY PRODUCT OR SERVICES.
• SMS warrants that the SMS service and maintenance personnel conform to the Proposal and will perform services on a best efforts basis.
• BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTIES IN THIS AGREEMENT SHALL BE FOR SMS, AT SMS’ OPTION, TO PERFORM A CORRECTION OF THE SERVICE, REPLACE THE EQUIPMENT, OR RETURN BUYER’S PURCHASE PRICE. EXCEPT FOR THE EXPRESS WARRANTY CONTAINED IN THIS AGREEMENT, SMS DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. EXCEPT FOR ITS EXPRESS WARRANTIES, SMS MAKES NO OTHER WARRANTIES. ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY SMS AND EXCLUDED FROM THIS AGREE-MENT.

Title and Risk of Loss: Risk of loss or damage to the product(s) shall pass to the BUYER on the date of delivery of the product(s). Title, or, where applicable, licenses for BUYER to use the Products, are retained by SMS until payment in full for product(s) is received. BUYER grants SMS title to all parts replaced during any maintenance or service. BUYER grants SMS a purchase money security interest in all product or services listed on this Proposal, until SMS has received payment in full for the Proposal. BUYER agrees to execute all documents necessary for SMS to perfect the security interest, if BUYER fails to execute the necessary documents, SMS may file this Agreement to perfect the security interest.

Alteration, Modifications, and Attachments: Any alteration, additions, improvements, or attachments on the product(s), or equipment, or software subject to maintenance or service, which is not authorized in writing by SMS, shall be solely at BUYER's expense and risk. To the extent that any BUYER alteration, addition, improvements, modification, or installation affects the performance or operation of the product(s), equipment, or software serviced or maintained by SMS, every warranty under this Agreement, including without limitation, any implied warranty of merchantability, shall be deemed waived by the BUYER and null and void, and SMS shall have no further obligations to the BUYER thereinafter.

Software License: BUYER expressly agrees to all manufacturers’ or suppliers’ software licensing documents at the time of delivery and shall execute all such software license agreements upon the request of SMS.

Liability: SMS's liability under this Agreement for any breach hereof is limited to those rights conferred on BUYER under the warranties and it is hereby agreed that those remedies are BUYER's exclusive and sole remedy. BUYER's exclusive and sole remedy in case of non-delivery by SMS shall be limited to refund of the amount of the purchase price paid and received by SMS as down payment. SMS shall not be liable for any loss, damages, or injury, either personal or business, of any kind to any premises or property arising from the use of the product(s) or service(s), regardless of the form of action, whether contract, tort, or otherwise. Notwithstanding anything to the contrary contained herein, or stated in the Proposal, the maximum liability of SMS to BUYER or any other person, whether such liability arises under contract, tort or otherwise shall in no case exceed the price paid to SMS for the specific product or service which caused the damage. IN NO EVENT SHALL SMS BE LIABLE TO BUYER FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR FROM ANY DAMAGE RESULTING FROM LOSS OF USE, DATA, OR PROFITS.

Entire Agreement: This document constitutes the entire Agreement between the BUYER and SMS. It is intended as a complete and exclusive statement of the terms of the Agreement and no course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this Agreement. No agent, employee, or representative of SMS has any authority to bind SMS to any affirmation, representation or warranty concerning the product(s) or service(s) sold under this Agreement, unless the same is included within this written Agreement. This Agreement may be modified or rescinded only by a written instrument signed by the parties hereto or by their duly authorized agents. Waiver by SMS of any provision hereof in one instance shall not constitute a waiver as to any other instance. Where the terms of this agreement and the BUYER's purchase order or other ordering document conflict, this document shall take precedence.