TERMS OF SALE
These Terms of Sale set forth the terms and conditions governing the sale of products and services, including hardware, software, and related services, by KCF Technologies, Inc., 336 South Fraser Street, State College, Pennsylvania (“KCF” or “Seller”). By placing an order with KCF for products or services on behalf or for the benefit of a business entity or other organization, you accept this these Terms of Sale as made between KCF and such business entity or other organization (collectively, “You” or “Buyer”). KCF may amend these Terms of Sale (alternatively, this “Agreement”) from time to time by posting amended Terms of Sale on our website at least thirty (30) days before their effective date. The Terms of Sale that are in effect when an order is placed with KCF shall govern that order. KCF shall not be bound by any other terms and conditions, regardless of whether You tender terms and conditions with an order or otherwise.
1. Shipping and Payment
A. Additional Charges. Buyer is solely responsible for payment of all shipping charges, freight costs, taxes (including value added taxes), import fees and duties, insurance, and any other charge incidental to Buyer’s purchase, delivery, and receipt of products and services (“Additional Charges”).
B. Shipping. All products delivered to Buyer by Seller shall be F.O.B. Seller’s distribution center, with risk of loss passing to Buyer upon tender of the products to a common carrier. At Buyer’s direction, Seller may arrange payment for shipping and insurance with the carrier, but such costs are Buyer’s responsibility. Delivery times quoted are estimates only, and Seller shall not be liable for delays in delivery.
C. Payment. Payment to Seller shall be made in advance, in U.S. dollars, by credit card, wire transfer, bank draft, or letter of credit, unless otherwise agreed in writing by Seller. At the sole discretion of Seller, credit terms of net thirty (30) days, up to a pre-approved limit, may be offered to Buyer. A late payment charge of one and a half (1.5%) percent per month, or the maximum percentage rate permitted by law, if lower, shall be charged on all past due balances. Buyer agrees to pay all costs and expenses incurred by Seller in collecting or attempting to collect past due balances, including, but not limited to, third party collection fees, reasonable attorneys’ fees, legal expenses, and court costs.
2. Acceptance & Returns. Shipments shall be deemed to be accepted by Buyer upon receipt of shipment. Any discrepancy in shipment quantity must be reported to Seller within five (5) days of Buyer’s receipt of shipment. Buyer may return evaluation units for any reason within thirty (30) days of the date of shipment by Seller. All other returns are at the sole discretion of Seller and, if accepted, subject to a restocking fee of the greater of twenty‐five (25%) percent of the invoiced amount or one hundred (US$100.00) dollars. All warranty returns must comply with Section 6 below. Under no circumstances will Seller refund any Additional Charges. Products that are customized, modified, or altered for or by Buyer or that were damaged after leaving Seller’s distribution center are not eligible for return.
3. Compliance with Laws, Rules & Regulations. Buyer acknowledges and accepts that products may be exported from the United States only in accordance with US Export Administration Regulations, and diversion contrary to US law is prohibited. Buyer warrants and represents that Buyer is eligible to receive products and services under US law and the laws of Buyer’s jurisdiction, and that Buyer shall be solely responsible for compliance with all laws, rules, and regulations pertaining to the use of any products and services, including without limitation all export, import, and re‐export restrictions. Use of Seller’s products or services for or on behalf of the United States of America, its agencies, and/or instrumentalities is subject to certain restrictions (DFARS 252.227-7013).
4. Software License.
B. License Term. Buyer’s license to use software shall end upon expiration or termination of (i) this Agreement or (iii) as otherwise provided in a Purchase Order. After expiration or termination of Buyer’s license to use the software, Seller may retain Buyer’s data or content indefinitely, but Seller is not obligated to retain or maintain Buyer’s content or Buyer’s access to content, provided that Seller will provide a reasonable means for Buyer to retrieve Buyer’s content upon expiration or termination of Buyer’s license to use the software at Buyer’s request received prior to such expiration or termination.
C. Jurisdiction. Seller’s software is controlled and operated from facilities in the United States. Those who access or use Seller’s software from other jurisdictions do so at their own volition, expressly consent to the application of United States law to all aspects of their access to and use of software, including with respect to the collection and use of data, and are entirely responsible for compliance with all applicable United States and local laws and regulations, including export and import regulations.
5. Limited Warranties, Exclusions, and Disclaimers.
A. Limited Warranty. Seller warrants that (i) all products (except spare parts, replacement parts and spare kits) shall be free from material defects in workmanship for a period of one (1) year from the date of invoice issued by Seller or its authorized distributor, but in no event more than eighteen (18) months from the date shipped from Seller’s distribution center; and (ii) all spare parts, replacement parts, and spare kits shall be free from material defects in workmanship for a period of ninety (90) days from the date of invoice issued by Seller or its authorized distributor. Seller warrants that it will implement commercially reasonable measures consistent with generally accepted practices to safeguard the software and Buyer’s data contained in it against accidental or unlawful loss, access, or disclosure; provided, however, that Buyer is responsible for properly configuring and using products and taking Buyer’s own steps to maintain appropriate security, privacy, and backup of your data.
B. Exclusions. The foregoing limited warranties are void with respect to (i) any product which, in Seller’s sole judgment, has been subjected to abuse, accident, alteration, modification, tampering, negligence, misuse, faulty installation, lack of reasonable care, repair, or service by anyone other than Seller that is in any way not contemplated in the documentation for such product; (ii) any product, of which the model or serial number has been altered, tampered with, defaced, or removed; (iii) operational adjustments not covered in the operating manual for such product; (iv) maintenance, calibration, or recalibration of any product by anyone other than Seller; (v) damage occurring in shipment or due to acts of nature, failures due to power surges, or other force majeure causes beyond Seller’s control; (vi) cosmetic damage; (vii) any product or service provided or furnished by anyone other than Seller; (viii) any product that has been installed or used outside Seller’s technical specifications as provided on the product datasheets and care and handling application notes; (ix) refurbished products and services; (x) the failure to install any required software or firmware update; and (xi) products that have been purchased through an inventory clearance or liquidation sale or other sale specifying that such product is being sold “as is.”
C. No Further Warranty. The foregoing limited warranties are the only warranties made by Seller under this Agreement. Seller does not make, and hereby disclaims, any representations or warranties, express, implied, or statutory, regarding (i) products and services (including hardware, software, and related services) and (ii) the acts or omissions of users of the products and services, including (without limitation) implied warranties of merchantability, fitness for a particular purpose, title, non-infringement of third party rights, and any warranties arising by course of dealing or custom of trade. Seller makes no representation or warranty that any products or services are accurate, complete, appropriate, reliable, or timely. Seller also makes no representations or warranties that the products and services will meet Buyer’s requirements, or that Buyer’s access to and use of the products and services will be uninterrupted or error-free, free of viruses, malicious code, or other harmful components, or otherwise will be secure.
D. Buyer’s Acknowledgment. By accepting delivery of any product, Buyer acknowledges and agrees that (i) the value and use of such product is unrelated to the value or cost of any real or personal property in connection with which such product may be used or any services related to such product which are furnished by any person; (ii) Seller makes no warranty that such product will avert, detect, or prevent occurrences or the consequences thereof which such products may have been designed to detect, avert, or prevent, or that such product may not be compromised, disabled, or circumvented; (iii) Seller has made no representations or warranties, express or implied, to Buyer or for Buyer’s benefit that contradict any of the foregoing; and (iv) “false alarms” and “false readings” from Seller’s products may occur for any number of reasons, and Seller does not warrant against such false results.
E. Limitation. Some jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to Buyer.
6. Warranty Repair and RMA Process
A. Repair and Replacement. Seller’s sole obligation with respect to any product which is found to contain any material defect in workmanship within the applicable warranty period shall be, at Seller’s sole discretion, either to repair or replace such product at no charge to the Buyer, or to refund the purchase price upon return of the defective product to Seller. The replacement product need not be new (i.e., it may be used or reconditioned) nor be of identical make, model or part, so long as Seller has reasonably determined that it is substantially equivalent or superior in all material respects to the product being replaced. Repaired or replacement products will be warranted for the remainder of the original applicable warranty period. All products (including any part thereof) replaced by Seller or for which the purchase price is refunded shall become the property of Seller upon replacement or refund. Unless otherwise designated in writing by Seller, Seller is the only party authorized to perform warranty service on Seller products and services.
B. Limitation. If a product is believed to be defective and is still in warranty, or if Seller has otherwise agreed to accept return of a product, Buyer shall (unless otherwise instructed in writing by Seller) (i) if the product is alleged to be defective, provide Seller with a written description in sufficient detail to allow Seller to confirm such defect; (ii) obtain a Return Merchandise Authorization (“RMA”) number from Seller; (iii) if requested by Seller, provide written proof of purchase of the product (such as a copy of the dated purchase invoice for the product); (iv) after an RMA number is issued, package the product securely in the original or other suitable shipping package to ensure that it will not be damaged in transit, with the RMA number prominently marked on the outside of the package; and (v) within fifteen (15) days of issuance of the RMA, ship the product at Buyer’s sole expense to Seller or its distribution center, as indicated by Seller. In addition:
1. If the product is being returned for maintenance, calibration, recalibration or repair, Buyer must not include any manuals or accessories in the shipping package. Seller will only replace the defective portion of the product and will not ship back any accessories.
2. Buyer is responsible for all shipping charges to Seller. No Cash on Delivery (“COD”) is allowed. Products sent COD will either be rejected by Seller or become the property of Seller, at Seller’s sole discretion.
3. Buyer shall fully insure any product for return to Seller, and Seller shall in no event be responsible for any shipment lost in transit.
4. Repaired or replaced products will be shipped to Buyer via UPS Ground or any common carrier selected by Seller, with shipping charges prepaid by Seller. Expedited shipping is available if shipping charges are prepaid by Buyer and only upon request.
5. Seller may reject or return any product that is not packaged and shipped in strict compliance with the foregoing requirements or for which an RMA number has not been obtained or is not visible from the outside of the package. The product owner agrees to pay Seller’s reasonable handling and return shipping charges for any product that is not packaged and shipped in accordance with the foregoing requirements or that is determined by Seller not to be defective or nonconforming.
7. Limitation of Liability, Indemnification, and Force Majeure.
A. Limitation of Liability. To the maximum extent permitted by law, Buyer and Seller agree that neither party, nor its affiliates, officers, directors, employees, shareholders, representatives, agents, or contractors, shall be liable to the other party, nor its affiliates, officers, directors, employees, shareholders, representatives, agents, or contractors, for any indirect, special, incidental, exemplary, punitive, or consequential damages, nor for any damages arising from personal injury or death, injury to real or tangible property, delay, loss of goodwill, loss of, damage to, or unauthorized access to data, interruption in use or availability of data, loss of use of money or use of products, lost profits, revenue or savings (actual or anticipated), or other economic loss ensuing from or in connection with products or services or this Agreement, even if such party has been advised of the possibility of such damages. Seller shall not be liable for any failure of Buyer’s equipment not provided by Seller. To the maximum extent permitted by law, Seller’s aggregate liability to Buyer shall not exceed the monies received from Buyer for the purchase of products and services. These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.
B. Indemnification. Buyer agrees to indemnify and hold harmless Seller and its affiliates, officers, directors, employees, shareholders, representatives, agents, or contractors from and against any and all losses, costs, damages, and expenses (including reasonable attorneys’ fees, court costs, and legal expenses) arising out of or related to (i) any use, misuse, or nonuse of a product or service by Buyer, any person acting under Buyer’s direction, control, or authorization, or any third party, whether such product is used alone or in conjunction with the operation, use, maintenance, or service of any other product or good, tangible or intangible, and regardless of the purpose of such use, misuse or nonuse, including without limitation the compliance of any other product or good with any safety or technical standard or specification for operation, use, or maintenance; and (ii) any third party claim arising out of or related in any way to any product or service sold to Buyer. Seller agrees to indemnify and hold Buyer and Buyer’s affiliates harmless from any damages arising out of or connected to claims, actions, or proceedings asserted by third parties based upon or related to (a) Seller’s failure to properly license any third-party software provided by Seller to Buyer in connection with providing our products or services to Buyer or (b) Seller’s material breach of this Agreement.
C. Force Majeure. Except for obligations to make payments, neither Seller nor Buyer will be liable for delay or failure to perform obligations under this Agreement where the delay or failure results from a cause beyond either party’s reasonable control, such as utility failures or, more generally, acts of God.
8. Termination. This Agreement and the relevant purchase order may by terminated by either party (i) upon the commission of a material breach, including the non-payment of any amounts due hereunder, by the other party that is not cured within fifteen (15) days of receipt of written notice from the non-breaching party; (ii) upon the bankruptcy or insolvency of the other party. Except as otherwise set forth herein, including Section 7, if either party directly incurs any costs or expenses or any other liabilities, or suffers any loss due to breach of this Agreement by the other party, the breaching party shall indemnify the non-breaching party against such costs, expenses, liabilities, and losses, including any paid, payable, or past interests.
9. Notices. Any notice or consent required under this Agreement shall be in writing, addressed to the other party at its respective address first stated above, and delivered by US first-class, certified mail, return receipt requested, effective three (3) days after deposit in the US mail with adequate postage prepaid thereon.
10. No Assignment. Neither this Agreement nor any license related to software granted herein may be assigned, sublicensed, leased, sold, or otherwise transferred by Buyer without prior written consent from Seller, and any transfer made without such prior written consent shall be null and void. This Agreement and any rights granted herein by Seller are personal to Buyer and may be used for personal or internal business use only and may not be used on behalf of a client or customer of Buyer except as authorized in writing by Seller.
11. Choice of Law and Arbitration. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to principles of conflicts of law. Any action, suit, or proceeding arising out of or related to any product or service sold by Seller to Buyer or the Agreement shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction hereof.
12. Severability and Non-Waiver. If any provision of the Agreement shall be held void, voidable, invalid, or inoperative, no other provision hereof shall be affected as a result, and accordingly, the remaining provisions shall remain in full force and effect as though such void, voidable, invalid or inoperative provision had not been contained herein, provided, however, that if such void, voidable, invalid or inoperative provision is a material term or condition, the parties shall be compelled to supply a substitute provision, negotiated in good faith, which comes closest to their original intention. No provision of the Agreement shall be deemed to have been waived by any act or acquiescence on the part of either party, it being understood that waiver may only occur by an instrument in writing signed by an authorized officer of the party against whom such waiver is sought to be enforced. In the event of a waiver, whether in writing or by operation of law, such waiver shall not constitute a waiver of any other provision or of the same provision on another occasion
13. Entire Agreement. This Agreement supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the subject matter and shall prevail over any conflicting or additional terms of any quote, order, previous agreement, acknowledgment, or similar communications between Seller and Buyer. If this Agreement is incorporated by reference into any other agreement between the parties or any terms and conditions applicable to Buyer, with respect to any ambiguity or conflict between such incorporating agreement or terms, on the one hand, and this Agreement, on the other hand, such incorporating agreement or terms shall control to the extent of the scope of such incorporating agreement or terms and this Agreement shall control with respect to matters outside the scope of such incorporating agreement or terms
For questions regarding these Terms of Sale, please contact [email protected]