TERMS & CONDITIONS OF SALE
SCOPE AND MODIFICATION
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”). 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”). KCF may amend these Terms of Sale 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.
CHARGES, PAYMENT, SHIPPING
You are 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 Your purchase, delivery, and receipt of products and services (“Additional Charges”).
Payment to KCF 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 KCF. At the sole discretion of KCF, credit terms of net thirty (30) days, up to a preapproved limit, may be offered to You. 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. You agree to pay all costs and expenses incurred by KCF 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.
All products delivered to You by KCF shall be F.O.B. our distribution center, with risk of loss passing to You upon our tender of the products to a common carrier. At the Your direction, KCF may arrange payment for shipping and insurance with the carrier, but such costs are Your responsibility. Delivery times quoted are estimates only and KCF shall not be liable for delays in delivery.
ACCEPTANCE & RETURNS
Shipments shall be deemed to be accepted by You upon receipt of shipment. Any discrepancy in shipment quantity must be reported to KCF within five (5) days of Your receipt of shipment. You may return evaluation units for any reason within thirty (30) days of the date of shipment by KCF. All other returns are at the sole discretion of KCF 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 7 below. Under no circumstances will KCF refund any Additional Charges. Products that are customized, modified, or altered for or by You or that were damaged after leaving KCF’s distribution center are not eligible for return.
COMPLIANCE WITH LAWS, RULES, & REGULATIONS
You acknowledge and accept 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. You warrant and represent that You are eligible to receive products and services under US law and the laws of Your jurisdiction, and that You 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 KCF 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).
Software referred to in these Terms of Sale includes all types of software provided by KCF, including firmware embedded on hardware products such as sensors and Base Stations.
KCF software is controlled and operated from facilities in the United States. Those who access or use KCF 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.
LIMITED WARRANTIES, EXCLUSIONS, AND DISCLAIMERS
KCF 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 KCF OR ITS AUTHORIZED DISTRIBUTOR, BUT IN NO EVENT MORE THAN EIGHTEEN (18) MONTHS FROM THE DATE SHIPPED FROM KCFS 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 KCF OR ITS AUTHORIZED DISTRIBUTOR. THE FOREGOING LIMITED WARRANTY IS MADE ONLY TO THE ORIGINAL BUYER OF THE PRODUCTS FROM KCF OR KCF’S AUTHORIZED DISTRIBUTOR.
KCF WARRANTS THAT IT WILL IMPLEMENT COMMERCIALLY REASONABLE MEASURES CONSISTENT WITH GENERALLY ACCEPTED PRACTICES TO SAFEGUARD THE SOFTWARE AND YOUR DATA CONTAINED IN IT AGAINST ACCIDENTAL OR UNLAWFUL LOSS, ACCESS, OR DISCLOSURE; PROVIDED, HOWEVER, THAT YOU ARE RESPONSIBLE FOR PROPERLY CONFIGURING AND USING PRODUCTS AND TAKING YOUR OWN STEPS TO MAINTAIN APPROPRIATE SECURITY, PRIVACY, AND BACKUP OF YOUR DATA.
THE FOREGOING LIMITED WARRANTIES ARE VOID WITH RESPECT TO: (i) ANY PRODUCT WHICH, IN KCFS 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 KCF 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 KCF; (v) DAMAGE OCCURRING IN SHIPMENT OR DUE TO ACTS OF NATURE, FAILURES DUE TO POWER SURGES OR OTHER FORCE MAJEURE CAUSES BEYOND KCFS CONTROL; (vi) COSMETIC DAMAGE; (vii) ANY PRODUCT OR SERVICE PROVIDED OR FURNISHED BY ANYONE OTHER THAN KCF; (viii) ANY PRODUCT THAT HAS BEEN INSTALLED OR USED OUTSIDE KCFS 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.”
THE FOREGOING LIMITED WARRANTIES ARE THE ONLY WARRANTIES MADE BY KCF UNDER THESE TERMS OF SALE. KCF DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING (A) PRODUCTS AND SERVICES (INCLUDING HARDWARE, SOFTWARE, AND RELATED SERVICES) AND (B) 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. KCF MAKES NO REPRESENTATION OR WARRANTY THAT ANY PRODUCTS OR SERVICES ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. KCF ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT YOUR 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.
BY ACCEPTING DELIVERY OF ANY PRODUCT , YOU ACKNOWLEDGE AND AGREE 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) KCF 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) KCF HAS MADE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO YOU OR FOR YOUR BENEFIT THAT CONTRADICT ANY OF THE FOREGOING; AND (iv) “FALSE ALARMS” AND “FALSE READINGS” FROM KCFS PRODUCTS MAY OCCUR FOR ANY NUMBER OF REASONS AND KCF DOES NOT WARRANT AGAINST SUCH FALSE RESULTS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
WARRANTY REPAIR and RMA PROCESS
KCFs 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 KCFs sole discretion, either to repair or replace such product at no charge to the original buyer, or to refund the purchase price upon return of the defective product to KCF. 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 KCF 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 KCF or for which the purchase price is refunded shall become the property of KCF upon replacement or refund. Unless otherwise designated in writing by KCF, KCF is the only party authorized to perform warranty service on KCF products and services.
If a product is believed to be defective and is still in warranty, or if KCF has otherwise agreed to accept return of a product, You shall (unless otherwise instructed in writing by KCF): (i) if the product is alleged to be defective, provide KCF with a written description in sufficient detail to allow KCF to confirm such defect; (ii) obtain a Return Merchandise Authorization (RMA) number from KCF; (iii) if requested by KCF, 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 Your sole expense to KCF or its distribution center, as indicated by KCF. In addition: (a) If the product is being returned for maintenance, calibration, recalibration or repair, You must not include any manuals or accessories in the shipping package. KCF will only replace the defective portion of the product and will not ship back any accessories. (b) You are responsible for all shipping charges to KCF. No Cash on Delivery (“COD”) is allowed. Products sent COD will either be rejected by KCF or become the property of KCF, at KCFs sole discretion. (c) You shall fully insure any product for return to KCF and KCF shall in no event be responsible for any shipment lost in transit. (d) Repaired or replaced products will be shipped to You via UPS Ground or any common carrier selected by KCF, with shipping charges prepaid by KCF. Expedited shipping is available if shipping charges are prepaid by You and only upon request. (e) KCF 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 KCFs 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 KCF not to be defective or nonconforming.
If KCF determines that a software update is required in order to address Your warranty issue, KCF will provide instructions for obtaining the update, which may include agreement to additional licensing terms. You are responsible for implementing the necessary updates.
LIMITATION OF LIABILITY, INDEMNIICATION, FORCE MAJEURE
To the maximum extent permitted by law, You and KCF 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 these Terms of Sale, even if such party has been advised of the possibility of such damages. KCF shall not be liable for any failure of Your equipment not provided by KCF. To the maximum extent permitted by law, KCF’s aggregate liability to You shall not exceed the monies received from You for the purchase of products and services. These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.
You agree to indemnify and hold harmless KCF 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: (1) any use, misuse or nonuse of a product or service by You, any person acting under Your 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 (2) any third party claim arising out of or related in any way to any product or service sold to You. KCF agrees to indemnify and hold You and Your 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) KCF’s failure to properly license any third-party software provided by KCF to You in connection with providing our products or services to You or (b) KCF’s material breach of these Terms of Sale.
Except for obligations to make payments, neither KCF nor You will be liable for delay or failure to perform obligations under these Terms of Sale 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.
Neither these Terms of Sale nor any license related to software granted herein may be assigned, sublicensed, leased, sold or otherwise transferred by You without prior written consent from KCF, and any transfer made without such prior written consent shall be null and void. These Terms of Sale and any rights granted herein by KCF are personal to You and may be used for personal or internal business use only and may not be used on behalf of a client or customer of You except as authorized in writing by KCF.
CHOICE OF LAW AND CHOICE OF VENUE
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 KCF to You or the Agreement shall be brought only in the courts with proper subject matter jurisdiction located in or having jurisdiction over the county in which KCF has its principal place of business at the time of filing of such action, suit or proceeding, and the parties hereby unconditionally and irrevocably consent and submit to the exclusive jurisdiction of such courts and waive any objection that they may now or hereafter have with respect thereto.
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.
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 KCF and You. If these Terms of Sale are incorporated by reference into any other agreement between the parties or any terms and conditions applicable to You, with respect to any ambiguity or conflict between such incorporating agreement or terms, on the one hand, and these Terms of Sale, on the other hand, such incorporating agreement or terms shall control to the extent of the scope of such incorporating agreement or terms and these Terms of Sale shall control with respect to matters outside the scope of such incorporating agreement or terms.
The paragraph headings in these Terms and Conditions of Sale are solely for the convenience of the parties and have no legal or contractual significance.