These Terms and Conditions of Sale (“Agreement) apply to the purchase of hardware or software (“Product”) or professional services (“Services”) ordered by client (“Client”) or quoted by Kudelski Security, Inc. (“Kudelski”). Any other additional or inconsistent terms or conditions, including warranties or indemnities, referenced in a purchase order, or other document or communication, (“Order”) from Client or any course of dealings between the parties or usage of trade are expressly disclaimed and rejected. The sale or Order of any Products or Services is expressly conditioned on Client’s assent to the terms of this Agreement. Client accepts this Agreement unless Client and Kudelski have an effective separate contract or statement of work, signed by both parties, in which case the separate contract or statement of work applies. Kudelski may amend this Agreement at any time and without notice. Services do not include any third party branded services, software-as-a-service or other cloud computing products all of which have their own separate terms and conditions from the provider.
Unless expressly stated on the quote, Kudelski quotes are subject to change at any time without notice. Client’s Order is subject to acceptance by Kudelski. Orders between Client and Kudelski are established with Kudelski’s written acceptance or Kudelski’s execution of the Order. Client may only change, cancel or reschedule Orders for Products at no charge up to three business days before scheduled shipment and upon written notice to Kudelski, unless the Product has been modified or otherwise reconfigured in accordance with Client’s specifications. Cancellation will not relieve Client’s duty to pay for Products shipped, Services performed or expenses incurred by Kudelski before the notice. If an Order is properly cancelled, Client’s sole remedy and Kudelski’s sole obligation will be a full refund of the purchase price paid for the Product. Cancellation of Orders following shipment must be made in accordance with the return policies of the manufacturer of the Product. Kudelski may correct, without liability, any typographical, clerical or other error or omission in any quote, statement of work, price list, order acknowledgement, invoice, correspondence, or other document. Products sold to Client may not be re-sold.
Prices are quoted in US dollars and are subject to change without notice at any time before the Order is accepted. Prices are net of taxes including sales, use, excise, VAT, environmental, disposal, duties, or other taxes or fees. Client pays the total purchase price for the Product plus shipping (to the extent shipping is not prepaid by Client), including shipping charges that are invoiced to Kudelski as a result of using Client’s carrier account number. If applicable, Client is responsible for providing Kudelski with a tax exemption certificate acceptable to the taxing authorities or evidence of a valid direct pay permit. In the event an audit by a taxing authority reveals that Client was not entitled to a tax exemption, Kudelski will invoice Client any assessed taxes, penalties, and interest, including court costs, filing fees and attorneys’ fees. For any Services being performed pursuant to a statement of work, Client pays for the Services in the amounts and under the payment schedule listed in the applicable statement of work. If no payment schedule is provided, Client will pay for the Services as invoiced by Kudelski. Except as otherwise specified in a statement of work, Client will reimburse Kudelski for all reasonable out-of-pocket expenses incurred by Kudelski in connection with the performance of the Services, including travel, lodging and meals.
Invoices are due as indicated on Kudelski’s invoice without any setoff, offset or deduction of any payment not due, taxes or otherwise, in the currency indicated on the invoice. Kudelski may invoice Client separately for partial shipments, shipping charges or installment of Services. Payment or credit terms are at Kudelski’s sole discretion and all Orders are subject to Kudelski’s credit approval. Kudelski reserves the right to suspend further deliveries of Product or suspend Services until payment is received. Client agrees to pay interest on all past-due sums at the lower of 1.5% per month or the highest rate allowed by law. Client grants Kudelski a security interest in the Products to secure payment in full. Client authorizes Kudelski to file a financing statement reflecting any security interest. Unless otherwise provided by applicable law, any credits provided to Client by Kudelski expire if unused within 12 months from the date the credit was issued.
Any shipping dates provided by Kudelski or any deadlines contained in a statement of work or any other document are estimates only. Kudelski will use commercially reasonable efforts to meet requested shipping times. Kudelski reserves the right to make shipments in installments and allocate the shipment of Products among its customer base. Delay in shipment of one installment will not entitle Client to cancel other installments. Product will ship EXW (facilities of any Kudelski supplier), Incoterms 2010, freight and handling prepaid and added to the invoice. Client authorizes Kudelski to choose the appropriate manner and means of all shipping of Product if a carrier is not designated in advance. For international shipping from the US or within or among non-US countries, expedited shipping, or other special considerations, Client is responsible for paying all actual charges associated with the requests including all export and import duties, or other related costs.
Title to Product will not pass to Client until Kudelski has been paid in full for the Products. Notwithstanding anything in this Agreement, title to software either stand-alone or embedded into Product remains with the applicable licensor(s), and Client’s rights and obligations related to the software are contained in the license agreement between Client and the licensor(s).
Not all Products are eligible for return. Returns are subject to the policies of each original manufacturer or publisher. If software was downloaded electronically, it is not returnable. For information contact Kudelski at[email protected].
Whether Services are quoted, ordered or authorized by Client, the statement of work or quote automatically incorporates this Agreement. Kudelski may use subcontractors to perform Services and Client consents to the use of those subcontractors with or without notice. In the event of a conflict between any term or condition in a statement of work and this Agreement, the statement of work controls. Changes to the scope of the Services in a statement of work will be made only in a writing executed by authorized representatives of both parties. Kudelski has no obligation to start work on a change order, until the change order is agreed upon in writing and executed by authorized representatives of both parties. Before Kudelski and its designated subcontractors are authorized to start Services, Client will provide (a) access and all required permissions or authorizations from third parties to access, use, or modify data in Client’s information technology systems and applicable software with authorizations in place at the start of Services and until Services are completed, (b) physical access during normal business hours or other times as agreed upon, (c) timely responses to Kudelski’s inquiries for information, approvals and authorizations, (d) access to staff and resources that Kudelski requires to provide the Services, and (e) a complete back-up of data and software before the start of Services. Kudelski will follow all reasonable written security rules and procedures provided by Client from time to time.
Termination of Services.
Either party may terminate Services for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice and subject to the warranties, the notified party will have ten days to remedy its performance, unless the parties agree in writing to a different remedy period. Failure to remedy any material default within the remedy period allows the non-beaching party to terminate immediately. In the event of any termination of the Services, Client is responsible for all Services performed and expenses incurred up to and including the date of termination plus any termination fee if one is set forth in the applicable statement of work.
Warranties and Disclaimers.
Client understands and agrees that the Products are not manufactured or designed by Kudelski. Only the manufacturer can offer warranties for the Product. To the extent Kudelski receives any written warranties that are transferable from the manufacturer or publisher, Kudelski will pass those on to Client. PRODUCTS MANUFACTURED OR SOFTWARE PUBLISHED ARE PROVIDED ON AN “AS-IS” BASIS BY KUDELSKI AND ITS AFFILIATES WITHOUT ANY WARRANTY OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED RELATED TO THE PRODUCTS (INCLUDING WITHOUT LIMITATION, ANY STATUTORY, EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, ACCURACY, COMPLETENESS, OR NON-INFRINGEMENT). The disclaimer contained in this section does not affect the terms of any manufacturer’s warranty. Client relies solely on the manufacturer’s specifications for the design or use of the Products in high risk environments including aircraft or automobile safety devices or navigation, life support systems or medical devices, nuclear facilities, or weapon systems and not rely on any statements, specifications, photographs or other illustrations of the Products that may be provided by Kudelski or its affiliates. Client acknowledges that no employee of Kudelski or its affiliates is authorized to make any representation or warranty on behalf of Kudelski or any of its affiliates that is not expressly in this Agreement.
Kudelski warrants that the Services will be performed in a workmanlike and professional manner. Client’s sole and exclusive remedy and Kudelski’s entire liability with respect to this Services warranty will be, at Kudelski’s option, to either (a) use its reasonable commercial efforts to re-perform any non-conforming Services not in substantial compliance with this warranty or (b) refund amounts paid by Client related to the portion of the Services not in substantial compliance. In each situation (a) or (b), Client must notify Kudelski in writing within ten business days after performance of the applicable Services. EXCEPT AS SET FORTH IN THIS AGREEMENT OR IN ANY STATEMENT OF WORK THAT EXPRESSLY AMENDS KUDELSKI’S SERVICES WARRANTY, AND TO THE EXTENT ALLOWED BY LAW, KUDELSKI MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, WHETHER STATUTORY, EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY STATUTORY, EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY, COMPLETENESS OR NON-INFRINGEMENT) RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN PERFORMING SERVICES AND ANY RESULTS TO BE OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND EXCLUSION APPLIES EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Client acknowledges that no employee of Kudelski or its affiliates is authorized to make any representation or warranty on behalf of Kudelski or any of its affiliates that is not expressly in this Agreement, statement of work or other document describing Services.
Limitation of Liability.
Kudelski and its affiliates will not be liable to Client for any indirect, special, incidental or consequential damages, including without limitation loss of revenue or income, loss of or use of data, operational efficiency, loss of customers or information, arising under this Agreement regardless of the form of action or theory of relief, even if advised of the possibility of such damages. Any liability for direct damages arising under this Agreement, regardless of the form of action or theory of relief, is limited to the purchase price of the Product or the total amount paid or to be paid for Services by Client under this Agreement. Except for claims of non-payment, any claim against Kudelski and its affiliates, of whatever nature, must be brought within one year of Products delivered or completion of the Services.
Export and Resale.
Client will abide by all applicable import and export laws and regulations, both U.S and foreign, with respect to the Products. Client is solely responsible for obtaining any license(s) or permit(s) required to transfer, export, re-export or import the Products and related technology. Client will not use the Products and related technology in relation to chemical, biological or nuclear weapons, rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets) or unmanned air vehicles capable of delivering same, or in the development of any weapons of mass destruction. Client will indemnify Kudelski for any violations of these laws and restrictions.
Kudelski is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example, acts of nature, acts or omissions by Client, operational disruptions, man-made or natural disasters, epidemic medical crises, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor, materials or Products through regular sources).
Arbitration and Governing Law.
Any dispute, controversy or claim arising out of or in relation to this Agreement, including the validity, invalidity, breach or termination, will be resolved by arbitration in New York, New York under the Commercial Arbitration Rules of the American Arbitration Association (AAA). The tribunal will consist of a single arbitrator to be chosen under the AAA rules. The language of the arbitration will be English. The award will be final and binding on the Parties and will also include legal fees, costs of arbitration and all related matters. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction. This Agreement is governed by the laws of the State of New York, without regard to its choice of law provisions. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to this Agreement. Notwithstanding the foregoing, for any dispute, controversy or claim arising out of or relating to amounts due to Kudelski related to this Agreement, Kudelski is not bound by this arbitration requirement and may at its sole option seek to collect any amounts by legal means available including filing suit in any court with jurisdiction.
Client may not assign this Agreement, or any of its rights or obligations without the prior written consent of Kudelski. Kudelski may assign or subcontract all or any portion of its rights or obligations related to the sale of Products, performance of Services, or assign the right to receive payments without Client’s consent. Subject to the restrictions in assignment contained in this provision, this Agreement will be binding on and inure to the benefit of the parties and their successors and assigns. No provision of the Agreement may be waived, amended or modified by either party except by a written agreement signed by both Client and Kudelski. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that Party to enforce its rights. The relationship between Kudelski and Client is that of independent contractors and not that of employer-employee, partnership or joint venture. All rights and obligations of the Parties under this Agreement automatically terminate with a cancellation of Order or termination or completion of Services, except for payment obligations or other terms which by their nature are intended to survive termination including limitation of liability, warranty disclaimers, and this survival provision. This Agreement constitutes the entire agreement between the parties regarding the purchase of Products or Services from Kudelski and supersedes and replaces any previous communications, representations or agreement, written or oral. If any part of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, all other parts will still remain in effect. Headings in this Agreement are for reference purposes only and are not to be interpreted as being part of this Agreement. Any notices required under this Agreement must be in writing.
Rev Date: 6.16.17