Terms and Conditions
By placing an order with Kernel Software, Inc., you agree to the following terms and conditions:
Our normal business hours are 9 AM to 6 PM except weekends and holidays.
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.