Terms and Conditions of Sale
Konrad Technologies, Inc.
The terms and conditions detailed herein (“Agreement”) apply to your (“Customer”) purchase from Konrad Technologies, Inc. (“Konrad”) of a system (“System”) and/or services (“Services”). THIS AGREEMENT SHALL APPLY UNLESS CUSTOMER AND KONRAD HAVE ENTERED INTO A SEPARATE SIGNED AGREEMENT APPLICABLE TO THE PURCHASE OF THE PRODUCTS OR SERVICES. By placing an order with Konrad, Customer agrees to be bound by the terms of this Agreement. Unless a separate, signed agreement as described above has been mutually executed, KORNAD EXPRESSLY OBJECTS TO AND REJECTS ANY TERMS AND CONDITIONS IN CUSTOMER’S PURCHASE ORDER OR OTHER SIMILAR DOCUMENT. IF YOU DO NOT AGREE WITH THESE TERMS, PROMPTLY NOTIFY KONRAD AND RETURN THE SYSTEM.
- PRICES, ORDERS, ORDER CONFIRMATION, ACCEPTANCE.
Prices are set forth in the quotation issued to Customer (“Quote”). All Quotes expire 30 days from date of issuance, unless otherwise stated in the Quote. All orders are subject to acceptance at the sole discretion of Konrad. Orders will be considered accepted once Konrad books an order and sends Customer a sales order acknowledgement. Konrad shall not be bound by changes to an order unless agreed by Konrad in writing. Konrad reserves the right to cancel any order if any information provided by Customer to Konrad is inaccurate.
- PAYMENT AND INVOICING.
Payment shall be due within 30 days from the date of invoice (“Invoice Date”). Payment shall be in US Dollars unless otherwise documented in the Quote. All sums not paid when due shall accrue interest daily at a monthly rate of the lesser of 1.5% or the highest rate permissible by law.
- DELIVERY, TITLE and RISK of LOSS.
Title and risk of loss to System shall pass to Customer upon shipment from Konrad, its warehouses, or its affiliated companies; provided however, Konrad retains a security interest and right of possession in the System until Customer makes payment in full. Shipping terms are EXW (Incoterms 2010) from any Konrad location. Customer is responsible for all shipping and handling, including fees, customs, formalities and clearance. Shipment dates provided by Konrad are estimates only, and Konrad shall have no liability for losses or claims resulting from late delivery of a System. Claims for shipment shortage shall be deemed waived unless presented to Konrad in writing within 45 days of the Invoice Date.
Prices exclude, and Customer is responsible for, any sales, use, service, value added, and like taxes (“Taxes”) arising from the purchase of the Systems and Services. If Customer is exempt from any Taxes, it must provide Konrad with the appropriate tax exemption documentation at the time the order is placed.
Software is licensed to Customer pursuant to the software license agreements provided with the software. All software is licensed, not sold, and title to the software remains with the applicable licensor.
- NON-KONRAD BRANDED PRODUCTS.
Konrad shall bear no liability whatsoever for any damages caused by any non-Konrad branded products that Konrad resells or integrates in to a System.
Services provided by Konrad are subject to a separate service agreement, statement of work (as agreed upon in writing by the parties) or, if applicable, to the Konrad Service Terms and Conditions.
- RETURN POLICY.
All Systems delivered by Konrad to the Customer are final with no right to return or to a refund, unless agreed to in writing by Konrad. Acceptance of System returns is in the sole discretion of Konrad. In the event Konrad agrees to accept a returned System, Konrad will issue to Customer a Return Material Authorization (“RMA”) number and charge Customer a 15% restocking fee. Customer is responsible for all costs and logistics of shipment of each returned System.
- LIMITED WARRANTY.
For a period of 12 months from the Invoice Date, Konrad warrants that the System will be free of defects in materials and workmanship that cause the System to fail to substantially conform to the applicable specifications or System documentation (“Limited Warranty”). Konrad warrants that any Services will be performed in a good and workmanlike manner. If Konrad receives notice of a defect or non-conformance during the applicable warranty period, Konrad will, in its discretion: (i) repair or replace the affected System, (ii) re- perform the affected Services, or (iii) refund the fees paid for the affected System or Services. Repaired or replaced Systems will be warranted for the remainder of the original warranty period or 90 days, whichever is longer. Third party parts purchased by Customer and integrated into the System will be covered under the terms of that manufacturer’s warranty. If Konrad elects to repair or replace components of a System, Konrad may use new or refurbished parts or products that are equivalent to new in performance and reliability and are at least functionally equivalent to the original component or System. Customer must obtain an RMA number from Konrad before returning any System under warranty to Konrad. Customer will pay shipping expenses to send the affected System to Konrad, and Konrad will pay shipping expenses to return the System to the Customer. If Konrad concludes, after examining and testing returned System, that it is not covered by the Limited Warranty, Konrad will notify Customer and return the System to Customer at Customer’s expense. Konrad reserves the right to charge a fee for examining and testing System not covered by the Limited Warranty. The Limited Warranty does not apply if the defect in the System is the result of improper or inadequate maintenance, installation, repair, or calibration (if such services were performed by or on half of a party other than Konrad); unauthorized modification; improper environment; use of an improper hardware or software key; improper use or operation outside of the specification for the System; improper voltages; accident, abuse, or neglect; or a hazard such as lightning, flood, or other act of nature. THE REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND THE CUSTOMER’S SOLE REMEDIES, AND SHALL APPLY EVEN IF SUCH REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- NO OTHER WARRANTIES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SYSTEMS AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND KONRAD DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. KONRAD DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE SYSTEMS OR SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. KONRAD DOES NOT WARRANT THAT THE OPERATION OF THE SYSTEMS WILL BE UNINTERRUPTED OR ERROR FREE.
- WARNING AND CUSTOMER INDEMNITY.
CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT SYSTEMS AND SERVICES ARE NOT DESIGNED, MANUFACTURED, OR TESTED FOR USE IN LIFE OR SAFETY CRITICAL SYSTEMS, HAZARDOUS ENVIRONMENTS OR ANY OTHER ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING IN THE OPERATION OF NUCLEAR FACILITIES; AIRCRAFT NAVIGATION; AIR TRAFFIC CONTROL SYSTEMS; LIFE SAVING OR LIFE SUSTAINING SYSTEMS OR SUCH OTHER MEDICAL DEVICES; OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SYSTEM OR SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, SEVERE PROPERTY DAMAGE OR ENVIRONMENTAL HARM (COLLECTIVELY, “HIGH-RISK USES”). FURTHER, CUSTOMER MUST TAKE PRUDENT STEPS TO PROTECT AGAINST SYSTEM AND SERVICE FAILURES, INCLUDING PROVIDING BACK-UP AND SHUT-DOWN MECHANISMS. KONRAD EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS OF THE SYSTEMS OR SERVICES FOR HIGH- RISK USES. CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD KONRAD HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, INCLUDING, LAWSUITS, ARBITRATIONS, AND/OR ADMINISTRATIVE ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF CUSTOMER’S USE OF THE SYSTEMS AND SERVICES FOR ANY HIGH-RISK USES, INCLUDING CLAIMS FOR SYSTEM LIABILITY, PERSONAL INJURY (INCLUDING DEATH) OR DAMAGE TO PROPERTY, REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF KONRAD.
- SYSTEM AND APPLICATION RESPONSIBILITY AND ADDITIONAL INDEMNITY.
CUSTOMER ACKNOWLEDGES THAT IT IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY AND RELIABILITY OF THE SYSTEMS WHENEVER THE SYSTEMS ARE INCORPORATED IN ITS APPLICATION, INCLUDING THE APPROPRIATE DESIGN, PROCESS, AND SAFETY LEVEL OF SUCH APPLICATION. CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD KONRAD HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, INCLUDING LAWSUITS, ARBITRATIONS, AND/OR ADMINISTRATIVE ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF CUSTOMER’S INCORPORATION OF THE SYSTEMS INTO ITS APPLICATION, REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF KONRAD.
- INTELLECTUAL PROPERTY LIABILITY.
Konrad agrees to defend any third-party claim that alleges that a System or Service infringes or misappropriates any U.S. intellectual property right (“Claim”). Customer shall (i) notify Konrad immediately upon learning of any Claim, or any allegation that the grounds for a Claim may exist, (ii) grant Konrad sole control over the defense and settlement of the Claim, and (iii) cooperate fully with Konrad in preparing a defense for any Claim. Konrad agrees to pay any final judgment or settlement resulting from any Claim, provided that the settlement is entered into in accordance with this Section. Konrad shall not be liable for a settlement made without its prior written consent. Notwithstanding the foregoing, Konrad shall have no obligation under this Section for any claim relating to or arising from (a) Customer’s modifications of System or Services; (b) failure to use System or Services in accordance with the applicable documentation; (c) the combination, operation, or use of System or Services with any hardware, software or service not provided by Konrad; (d) the compliance of Konrad with Customer’s specifications or directions, including the incorporation of any software or other materials provided by or requested by Customer.
The foregoing states the Customer’s sole remedy for, and the entire liability and responsibility of Konrad for, infringement or misappropriation of any intellectual property rights. THIS LIMITED INDEMNITY IS IN LIEU OF ANY OTHER STATUTORY OR IMPLIED WARRANTY AGAINST INFRINGEMENT.
In any event, if Konrad believes in its reasonable opinion the System or Services may be alleged to be infringing or misappropriating a third party’s intellectual property rights, for the purposes of mitigating any potential damages, Konrad may, at its option, (i) procure for the Customer the right to continue to use the System or Services; (ii) replace them with a comparable System or re-perform the Services free of such infringement; or (iii) refund the fees paid by Customer, in which case Customer shall promptly return the System to Konrad, at Konrad’s expense.
- PROPRIETARY RIGHTS.
Konrad reserves all right, title, and interest in any intellectual property rights contained or embodied in the Systems, or resulting from the Services, including any custom developments created or provided by Konrad under this Agreement. Nothing in this Agreement will be deemed to grant to Customer any ownership rights in such intellectual property.
- LIMITATION OF LIABILITY.
KONRAD SHALL NOT BE LIABLE FOR (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SYSTEMS OR SERVICES; OR (II) ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (A) SYSTEMS OR SERVICES NOT BEING AVAILABLE FOR USE, INCLUDING ANY COSTS OF OBTAINING SUBSTITUTE SYSTEMS OR SERVICES; (B) LOSS OF, CORRUPTION OF, OR LOSS OF USE OF ANY SYSTEMS OR DATA; (C) LOSS OF REVENUE, PROFIT, OR BUSINESS OPPORTUNITY; (D) BUSINESS INTERRUPTION OR DOWNTIME; OR (E) INABILITY TO ACHIEVE A PARTICULAR RESULT, EVEN IF IT IS AT SUGGESTION MADE BY KONRAD. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF KONRAD ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT OR THE SYSTEMS OR SERVICES, SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SPECIFIC SYSTEM OR SERVICE GIVING RISE TO SUCH CLAIM. THIS SECTION: (1) APPLIES TO KONRAD AND ITS LICENSORS, DISTRIBUTORS, AND SUPPLIERS (INCLUDING ITS AND THEIR DIRECTORS, OFFICERS,EMPLOYEES, AND AGENTS), (2) REFLECTS AN ALLOCATION OF RISK BETWEEN KONRAD AND CUSTOMER IN VIEW OF THE PURCHASE PRICE OF THE SYSTEMS AND SERVICES, (3) APPLIES EVEN IF KONRAD HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES AND REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART UPON ALLEGED OR ACTUAL NEGLIGENCE OF KONRAD, AND (4) REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS UNENFORCEABLE OR FAILS OF ITS ESSENTIAL PURPOSE, THE SOLE LIABILITY OF KONRAD TO CUSTOMER SHALL BE LIMITED TO $50,000 (USD).
- FORCE MAJEURE.
Konrad shall not be responsible for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of nature or governments; interruptions of telecommunications, power or transportation; failure of contractors or suppliers; or inability to obtain necessary labor or materials (“Force Majeure Event”). In the event of a Force Majeure Event, Konrad reserves the right to cancel the applicable order without any liability to Customer.
- EXPORT AND SANCTIONS LAWS AND COMPLIANCE.
Systems (including any software and technology incorporated in or supplied with a System) purchased from Konrad are subject to control under the U.S. Export Administration Regulations (15 CFR Part 730 et. seq.) administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) (www.bis.doc.gov) and other applicable U.S. export control laws and sanctions regulations, including those administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) (www.treas.gov/ofac). In addition, Systems distributed from Konrad’s locations center in Europe are subject to control under the European Union (“EU”) Council Regulation No. 428/2009 and their export or intra-EU transfer may also be subject to additional licensing requirements under European Union Council Regulation No. 428/2009 and its implementing regulations. Systems may not be exported or re-exported to any country where sanctions are imposed by the U.S. government. Customer agrees it will comply with the export laws and trade sanctions of all applicable countries and will not export, re-export or transfer Systems purchased from Konrad without the required license(s), including an export or re- export license issued by the U.S. authorities, or to any prohibited destination or for a prohibited end-use. Systems may also require export license(s) issued by the applicable authorities before being returned to Konrad. The issuance of a Quote, a sales order acknowledgment, or an RMA by Konrad is not an export license. Customer represents and warrants it is not ineligible or otherwise restricted by U.S. or applicable law to receive Systems and it will not export, re- export, or provide Systems to any person or entity on OFAC’s List of Specially Designated Nationals or on BIS’s Denied Persons List, Entity List or Unverified List or any other applicable restricted party list. Konrad reserves the right to refuse or cancel any order if, at any time, Konrad believes that any export controls or trade sanctions laws may be violated.
- GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Texas, U.S.A., without regard to principles of conflicts of laws. The parties submit to the personal jurisdiction of the state and federal courts in Travis County, Texas. The parties expressly agree that the provisions of the United Nations Convention on Contracts for the International Sale of Products will not apply to this Agreement.
- LIMITATION PERIOD.
KONRAD SHALL NOT BE LIABLE FOR ANY CLAIM ARISING UNDER THIS AGREEMENT BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
Konrad reserves the right to update this Agreement at any time, effective upon posting an updated version at [TBD]; however, the terms and conditions in effect at the time of purchase shall apply to that purchase of Systems or Services.
- GENERAL TERMS.
This Agreement, and any terms incorporated herein by reference, constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings or agreements, whether written or oral, with respect to that subject matter. Customer acknowledges reading this Agreement, understands these terms, and agrees to be bound by them. This Agreement may not be altered, supplemented, or amended by the use of any other document unless otherwise agreed in writing by Konrad. No delay or failure by Konrad to exercise any right it has under this Agreement shall impair or be construed as a waiver of such right. A waiver of any provision of this Agreement must be in writing and shall not be construed as a waiver or modification of any other term hereof, or as a continuing waiver of any provision. If any part, term, or provision of this Agreement is held illegal, unenforceable, or in conflict with any applicable and enforceable law, the validity of the remaining portions or provisions of this Agreement shall not be affected. The doctrine that any ambiguity contained in a contract shall be construed against the party whose counsel has drafted the contract is expressly waived by each of the parties with respect to this Agreement.
October , 2016