General Conditions of Sale and Delivery in USA
1.1 In these General Conditions of Sale and Delivery (the “Conditions”), the term “Kvaser” means Kvaser Inc.; “Buyer” means any person or entity purchasing a product from Kvaser; “Contract” means any agreement to the effect that Buyer shall purchase products from Kvaser; “Product(s)” means any hardware, (including firmware) and software (including any driver and API) sold or licensed by Kvaser.
1.2 These Conditions shall govern any sale and delivery and any offer made by Kvaser. Terms deviating from these Conditions shall not be valid unless Kvaser has confirmed them expressly in writing.
1.3 A Contract is deemed concluded only after Kvaser has confirmed the order in writing or upon carrying out the order. Unless Kvaser has given its prior acceptance in writing, Products are not returnable (unless defective) nor may a Contract be cancelled. If the period of validity of an offer made by Kvaser has not been explicitly set, its validity is limited to ten (10) days from the date of issue.
2. Price and payment
2.1 Prices for the Products will be set out in the offer or the price list valid on the day the Contract was concluded. Prices include packaging and package for the Products. Prices for the Products do not include any customs, duties, value-added tax, income tax or any other assessment levied by authorities in the Buyer’s country. Any such amounts levied, whether withheld at source or otherwise, will be added to the price for the Products and shall be paid by, or for the account of, the Buyer.
2.2 All deliveries are FOB Kvaser’s premises Mission Viejo, CA USA. Kvaser shall be entitled to invoice upon delivery. Payment terms are thirty (30) days from the last of the date of the receipt of the invoice or the date of the delivery of the invoiced Products.
2.3 After a Contract has been concluded and up until delivery of the Products, Kvaser may, at its sole discretion, cancel any credit granted to the Buyer and request pre-payment or any other appropriate security arrangements prior to delivering the Products.
2.4 Title to the Products shall remain with Kvaser and shall not pass to the Buyer until payment in full has been received by Kvaser. Even though the Products have been delivered to the Buyer, Kvaser may terminate a Contract, with immediate effect, and recover the Products should a default in payment occur.
3.1 The Products will be delivered on the agreed delivery date. Should Kvaser discover that the delivery date set out in a Contract can not be met, Kvaser shall immediately notify the Buyer in writing, stating the cause for the delay and its best estimate of when the delivery can be made. If a delay occurs due to any action or omission by the Buyer, the delivery date will be moved forward as considered reasonable in view of all circumstances.
3.2 In case of a delayed delivery caused by Kvaser, the following shall apply:
(i) Kvaser shall reduce the price for the Products by one (1) per cent of the contracted price for the Products per completed two (2) weeks period of delay. The aggregate price reduction shall not exceed a total of five (5) per cent of the price for the Products. The price reduction shall only be based upon the price for the items actually delayed. Price reductions shall not apply if less than five (5) per cent of the items in an entire shipment are delayed.
(ii) If the delay in delivery is such that the Buyer is entitled to maximum price reductions and if the Products are still not delivered, the Buyer may in writing demand delivery within a final reasonable period, which shall not be less than two (2) weeks. If Kvaser does not deliver within such final period, the Buyer shall be entitled to terminate the Contract for such part of the delivery as has still not been delivered. Where Kvaser is in delay and such delay is prolonged due to circumstances caused by the Buyer, price reductions shall not apply to the period of additional delay caused by the Buyer.
3.3 The remedies for late delivery set out herein shall be the full and exclusive remedy available to the Buyer. All other claims against Kvaser based on any delay in delivery shall be excluded.
4. Limited Warranty
4.1 Kvaser warrants that its Products shall be free from defects in manufacture and material for a period of twenty-four (24) months from the date of delivery. Except for this warranty, neither Kvaser AB, Kvaser, Inc., nor any distributor of Kvaser Products makes any warranty.
ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED.
4.2 In case of delivery of defective Products, Kvaser undertakes, during a period of twenty four (24) months from delivery of the Products, to repair or replace any Product found to be defective. However, if Kvaser determines that it is not feasible to repair or replace software included in the Products, Kvaser may, at its sole option, decide that the Products shall be returned instead of being repaired or replaced and the price for the Products will be refunded. Any repair or replacement shall be made at Kvaser’s option and cost and with reasonable expedience. Products returned or otherwise rejected shall be delivered to Kvaser at Kvaser’s expense and risk. All Products returned or rejected shall be accompanied by a report issued by the Buyer, stating the reason for the return and/or rejection. This liability does not cover faults caused by the Buyer’s or a third party’s incorrect handling of the Product.
4.3 Kvaser’s warranty does not apply to any claim of Product defect that results from improper use, negligence, improper installation, improper product testing methods, repairs made by the Buyer, or other factors outside of Kvaser’s control. All and any modifications, changes or add-ons made to a Product without explicit prior consent by Kvaser will void the warranty for that Product.
4.4 The remedies for delivery of defective Products set out herein shall be the full and exclusive remedies available to the Buyer. All other claims against Kvaser based on delivery of defective Products shall be excluded.
5. Other terms and conditions
5.1 All intellectual property rights in the Products are and shall remain the exclusive property of Kvaser or its licensors, as applicable. In case any software should form an integral part of a Product or otherwise be included in deliveries from Kvaser, such software shall always be deemed to be provided to the Buyer pursuant to a non-exclusive license agreement, for the sole purpose of enabling the Products to perform in accordance with its specifications.
5.2 In no event shall Kvaser or the Buyer be liable for indirect or consequential damages. Kvaser has no liability for the result of Buyer’s use of Products in conjunction with hardware and software not provided by Kvaser.
5.3 Kvaser Products may be used together with software and/or hardware not provided by Kvaser. Kvaser’s information concerning its products’ capability, capacity and performance may not apply when the Kvaser Products are used with software and/or hardware not provided by Kvaser.
5.4 Circumstances that may be designated as force majeure shall be considered as grounds for relief from a Contract, provided that the circumstance at hand could not have been foreseen when the Contract was made, that it was not caused by the party seeking relief and that it impedes the performance of a party according to the Contract and fulfilment of the performance in question therefore would be unreasonably onerous.
5.5 Any Contract shall be governed by the laws of Illinois. Any dispute, controversy or claim arising out of or in connection with this agreement or the breach, termination or invalidity thereof shall be finally settled by arbitration under the auspices of the American Arbitration Association. The arbitration tribunal shall be composed of one (1) arbitrator. The venue for arbitration shall be Chicago, Illinois. The language to be used in the arbitral proceedings shall be English.