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Terms and Conditions By placing an order with Kernel Software, Inc., you agree to the following terms and conditions: Pricing
Our normal business hours are 9 AM to 6 PM except weekends and holidays. Legal Statement Exclusive Terms: All sales by Kernel
Software, Inc. ("KSI") of its or any other manufacturer’s
products ("Products") are governed exclusively by these terms and
conditions, and acceptance hereof is expressly limited to these terms and
conditions. Acceptance of Buyer’s purchase order is expressly made
conditional upon Buyer’s assent to these terms and conditions. Any terms
proposed by Buyer which add to, vary from, or conflict with these terms and
conditions are hereby objected to and shall be void. If these terms and
conditions differ in any way from the terms and conditions of Buyer’s
purchase order, then this acknowledgement shall constitute a
"counter-offer" and shall not be an acceptance of Buyer’s
purchase order. Any conduct by Buyer that recognizes the existence of a
contract or the acceptance by Buyer of any Products shall constitute Buyer’s
acceptance of these terms and conditions. Price and Delivery: Price and delivery terms
are FOB origin unless stated otherwise on the invoice. Handling fees may be
charged based on order size, complexity, or shipping method. Upon delivery of
the Products to the carrier at the FOB point, title and risk of loss and
damage to the Products shall pass to the Buyer. All prices are subject to
change without notice. Prices will be those in effect at the time of
shipment. KSI may make delivery in installments and receive payments for each
installment. KSI will select a carrier and mode of shipment unless Buyer
provides different instructions. All delivery dates are estimated. KSI shall
not be liable for any direct, indirect, incidental, consequential, or other
damages for KSI’s failure to fill, or delay or error in filling any
order, or for any delay in delivery. Cancellation of order or return is
subject to a charge of 20% of the total order amount. Within 10 days
following delivery, any defective or non-conforming Products may be returned
to KSI for repair or replacement pursuant to the Warranty section hereof,
which shall be Buyer’s exclusive remedy for any delivery of defective
or non-conforming Products. Payment, Taxes, and Duties: Payment terms are stated on
the invoice. KSI reserves the right to ship COD or freight-collect to Buyer.
All overdue amounts shall bear a finance charge of one and one-half percent
(1.5%) per month, or the maximum rate permitted by applicable law, whichever
is less, until paid in full. $25.00 will be charged for checks returned for
insufficient funds. Finance charges shall accrue on a daily basis. The prices
for the Products do not include sales, use, property, value-added, or other
taxes or charges not based on KSI’s net income, all of which shall be
paid by Buyer. Where applicable, Buyer will provide KSI with an exemption
certificate in form and substance satisfactory to the relevant taxing
authorities. Warranty: KSI does not warrant to
Buyer that any Products sold, including software, will be free from defects
in material and workmanship. All Products sold to Buyer by KSI are covered
exclusively by the Product manufacturer’s warranty, if one exists. This
warranty does not extend to any damage, defect, or malfunction caused by any
abuse, misuse, unauthorized modification, abnormal or improper environmental
conditions, damage during shipment, accident, or natural disaster. No
employee or other person is authorized to expand or change this warranty and
any such oral or written statement or representation will not bind KSI. The above warranty is the only warranty of any kind provided by
KSI, whether express or implied, and KSI expressly disclaims the implied
warranties of merchantability and of fitness for particular purpose. All
software is provided "as is" and without warranties of any kind.
Please refer to the license agreement of the licenser of such software which
exclusively governs all terms and conditions of the software’s use. Exclusive Remedy: In the case of KSI’s
breach of the above warranty (or any other duty, if any, with respect to the
quality or performance of any Product), Buyer’s exclusive remedy, and
KSI’s sole liability therefor, shall be, at KSI’s option, the
repair or replacement, of any defective Product or return of the purchase
price, less deduction for depreciation, damage, or obsolescence. A product
repaired or replaced under this warranty will be warranted only for the
remainder of the warranty period. Any return shall be to: Kernel Software,
Inc., 214 Sherman Street, Wausau, WI, 54401-6086. Before returning a Product,
Buyer shall first obtain from KSI a return merchandise authorization number
(RMA). Buyer shall attach a test report to each Product to be returned and
ship the Product, freight prepaid, in its original shipping container, with
the RMA clearly marked on the outside of the packaging. Buyer shall enclose
the complete accessories such as documentation, cables, and software. Buyer
shall bear the risk of loss or damage to the product during such shipment.
Repair parts and replacement Product will be either reconditioned or new. If
a Product is found not to be defective or the defect not covered by the
warranty, Buyer will be responsible for the reasonable and necessary costs of
KSI’s testing and repair at KSI’s then current rates. KSI accepts
no liability with respect to any software or data contained in any Product or
part returned to KSI for repair or replacement. Buyer agrees that each of the liability limitations contained in
the Limitation of Liability section shall remain in effect even if an
exclusive remedy is determined to fail of its essential purpose. Limitation of Liability: Under no circumstances
shall KSI be liable for any special, indirect, incidental, punitive, or
consequential damages, including, without limitation, lost profits, lost
goodwill, and loss or impairment of data, software, or other goods, and
whether arising out of breach of any express or implied warranty, breach of
contract, tort (including negligence), strict product liability, or
otherwise, even if advised of the possibility of such damage or if such
damage could have reasonably been foreseen, except only in case of personal
injury where and to the extent applicable law requires such liability. Not withstanding any other provision
hereof, in no event shall KSI’s total liability relating to or in
connection with any Products whether based on contract, warranty, tort
(including negligence), strict Product liability or otherwise, exceed the
actual amount paid to KSI by Buyer for the Product(s) giving rise to the
liability. In no event shall KSI be liable for the costs of procurement of
substitute good or services. Force Major: KSI shall not be liable for
any failure to perform or delay in performing any of its obligations when
such failure or delay is due to circumstances beyond its reasonable control,
including, without limitation, any natural catastrophe, fire, war, riot or
civil unrest, strike, lockout or other labor disturbance, late or
non-delivery by suppliers, shortage or unavailability of materials,
components, or transportation facilities, assertion by a third party of an
infringement claim, or any act, refusal to act, regulations, order, or intervention
of any government authority. Security Interest: Buyer hereby grants KSI a
security interest in all Products delivered to Buyer thereunder and, upon
KSI’s request, Buyer shall execute and deliver such financing statement
or other documents as may be necessary to perfect such security interest. General Provisions: These terms and conditions
shall be governed by the laws of the State of Wisconsin, excluding conflict
of law rules and principles. No delay or failure by KSI to enforce any of its
rights shall be considered a waiver thereof. If any provision is held invalid
or unenforceable, such provision shall be modified to minimum extent
necessary to make it valid and enforceable, and the other provisions shall
not be affected thereby. This agreement may only be amended by a document
signed by both parties. KSI reserves the right to modify these terms and
conditions with respect to future orders at any time. |