Terms & Conditions of Sale
Revised November 1 2008
1. APPLICATION OF TERMS AND CONDITONS OF SALE
The following terms and conditions shall govern the sale by Kirmuss & Associates/Infinity Advanced Technologies (“K&A or “Seller”) of orders for its outside manufactured two way radio products, microphones, GPS and PDA products and accessories and/or related products and/or standard services (hereinafter “Product”) sold to Customers. All sales by K&A to Customer are Final and are governed by these Terms and Conditions. Certain additional terms may accompany the Product and shall apply.
Customer agrees to be bound by and accepts these Terms and Conditions of Sale (referred to throughout as “Terms and Conditions”).
K&A reserves the right to add, delete or amend these Terms and Conditions without prior written notice at any time, at K&A’s sole discretion.
“Customer” means any person ordering products from K&A and who has not entered into a separate formal purchase agreement with K&A.
“K&A Products” means any hardware, software or services, etc. supplied by K&A that is branded with the K&A or Infinity brand name and/or trademark.
“Third Party Products” refers to hardware, products or software supplied by K&A under the brand name of a third party or K&A.
“Products” means collectively both K&A and Third Party Products sold by K&A
2. QUOTES; ORDERS; PAYMENT TERMS
Subject to the terms contained in this section, any quotation provided by K&A will be valid for the duration stated in the quotation. If no duration is stated, such quotation will be valid for 30 days.
Although K&A strives to provide accurate product and pricing information, errors or misprints may occur. K&A cannot confirm the price of a Product until being contacted. Notwithstanding anything contained in this section 2, in the event that a Product is listed at an incorrect price or with incorrect information due to an error in pricing or product information, K&A shall have the right, at our sole discretion, to refuse or cancel any orders, or part of an order placed or subsequently processed by K&A for that Product and terminate the purchase agreement without further liability. In the event that a Product is priced in error or a Product information error occurs, K&A may, at our sole discretion, contact you for instructions, cancel your order and notify you of such cancellation, terminate the purchase agreement and/or correct the error on our web site and/or Product literature.
Payment shall be made by credit card or some other pre-arranged method of payment acceptable to K&A. Where payment is made by credit card, such payment is subject to the approval of the financial institution issuing the credit card and K&A shall not be liable in any way if such financial institution refuses to accept or honor the credit card for any reason.
3. PRODUCT AVAILABILITY
Product availability may be limited. Products ordered may not be available for immediate delivery. K&A reserves the right, without liability or prior notice, to revise or cease to make available any or all Products. If there are any revisions to or cessation of Products, K&A may on its own ship Products which have similar functionality and specifications to the Products originally ordered.
4. PRICES, SHIPPING AND HANDLING CHARGES AND APPLICABLE TAXES
All Sales are Final. Products shipped may not be re-routed by customer. Prices quoted do not include charges for shipping and handling, and any applicable federal, state, VAT or provincial taxes and any customs and duties. Separate charges for shipping and handling if applicable will be shown separately on the invoice. Deposits received are non-refudable. Customer is responsible for all sales, use, goods and services, harmonized sales, VAT and other taxes associated with the order. Unless Customer provides K&A with a valid and correct tax exemption certificate applicable to the product ship-to location prior to K&A acceptance of the order, the Customer is responsible for sales and all other taxes associated with the order and will pay them directly to their taxing authority.
K&A’s policy is one of on-going product update and revision. K&A may revise and discontinue Products shown on our website at any time. K&A will ship Products that have the functionality and performance of the products ordered, but changes between what is shipped and what is described in a specification sheet or catalog are possible.
6. TITLE AND RISK OF LOSS OR DAMAGE; DELIVERY
Title in the Product and risk of loss shall pass to Customer from the moment the Product has been picked up at K&A’s facility by the Carrier and acceptance will occur upon pick up by the Carrier and upon delivery to Customer’s carrier or designee.
K&A may deliver the Products ordered in installments. Any delivery or shipment dates given by K&A are estimates only and K&A is not liable for any loss, damage, cost or expense for any failure to deliver in accordance with the given delivery or shipment date.
7. RETURN POLICIES
All sales are final. You may be able to return your K&A Product for a replacement or repair if you strictly adhere to all of the terms and conditions below:
Product must be returned with all shipping and insurance charges pre-paid. Customer must follow the warranty statement with each product sold. Customer will not be reimbursed for such charges, except where Product is being returned because it is deemed defective by K&A and solely at K&A’s discretion
8. LIMITED WARRANTY ON K&A PRODUCTS
K&A Limited Warranty statement is available for you to read prior to purchase and it will also be included with each K&A Product shipped to Customer. K&A reserves the right to modify its warranty statement at any time, in its sole discretion. Warranty is only valid upon K&A’s receipt of payment in full for the K&A Product to be warranted and where a warranty card has been received within 30 days of Product purchase.
EXCEPT AS PROVIDED IN THE LIMITED WARRANTY STATEMENT, K&A MAKES NO OTHER WARRANTIES OR CONDITIONS AND THE WARRANTY STATEMENT IS IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, PROMISES, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. K&A EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS NOT STATED IN THE PRODUCT’S LIMITED WARRANTY STATEMENT. ANY IMPLIED WARRANTIES AND CONDITIONS THAT MAY BE IMPOSED BY LAW ARE LIMITED IN DURATION TO THE APPLICABLE WARRANTY PERIOD.
TO THE EXTENT ALLOWED BY LOCAL LAW, K&A’S LIABILITY FOR K&A HARDWARE WARRANTY CLAIMS IS LIMITED TO REPAIR OR REPLACEMENT AS SET FORTH IN THE APPLICABLE LIMITED WARRANTY STATEMENT. K&A does not warrant that its products are error free and bug free as the products use firmware, and depending on usage, products may create error messages and cause the product to fail. K&A’s sole obligation is to report this error to the original manufacturer and have the original manufacturer of the K&A product correct and repair the sited fault. No timetable is given for this repair. K&A will do its utmost in working with the original equipment manufacturer used to clear this problem. As in many cases, these errors are seen only after products being used in the field and under certain circumstances.
9. SOFTWARE LICENSE AND WARRANTY
Title to any software installed with the K&A Products shall remain with the applicable licensor(s). All software is subject to the applicable license agreement which is included with the Product(s). Customer shall be bound by the license agreement once the software is opened, the package is opened or its seal is broken. Warranty for any software shall be in accordance with the license agreement. K&A does not warrant that its software/firmware is error and bug free, K&A DOES NOT WARRANT ANY SOFTWARE OR PRODUCT FIRMWARE UNDER THIS AGREEMENT.
10. THIRD PARTY PRODUCTS
Third Party Products or products manufactured by a third party and labeled under the K&A or Infinity brand name may carry different warranty policies than K&A Products. Any warranty and technical support provided on a Third Party Product is provided by the original manufacturer, not by K&A. The warranties and technical support may vary from product to product. K&A’s sole responsibility if a product is manufactured by a third part whether under the manufacturer’s name or K&A’s name, is where K&A will contact the third party (the original manufacturer of the product) sitting the problem and asking for the original manufacturer to correct any deficiencies noted.
11. EXCLUSION AND LIMITATION OF LIABILITY
FOR ANY BREACH OF THESE TERMS AND CONDITIONS, K&A’S SOLE AND EXCLUSIVE MAXIMUM LIABILITY SHALL NOT IN ANY EVENT EXCEED $1,000.00 USD, OR IF LESS, THE TOTAL PRICE OF THE PRODUCTS ORDERED BY CUSTOMER, TO A MAXIMUM TOTAL OF $1,000.00 USD.
IN NO EVENT WILL K&A BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTIAL, SPECIAL DAMAGES OR ECONOMIC LOSS (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, EXPENDITURES, INVESTMENTS, COMMITMENTS OR LOST PROFITS) ARISING FROM ANY CLAIM OR ACTION, INCIDENTAL OR COLLATERAL TO, OR DIRECTLY OR INDIRECTLY RELATED TO THE PURCHASE OF THE PRODUCTS HEREUNDER, WHETHER SUCH CLAIM IS BASED IN CONTRACT, STATUTE, TORT, IMPLIED DUTIES OR OBLIGATIONS OR OTHER LEGAL THEORY.
K&A SHALL NOT BE LIABLE IF IT IS UNABLE TO PERFORM ANY OF ITS OBLIGATIONS CONTAINED IN THESE TERMS AND CONDITIONS DUE, DIRECTLY OR INDIRECTLY, TO MATTERS BEYOND THE CONTROL OF K&A INCLUDING, BUT NOT LIMITED TO, THE FAILURE OF ANY MACHINE, SYSTEM OF AUTHORIZATION, DATA PROCESSING OR COMMUNICATION SYSTEM OR TRANSMISSION LINK OR ANY LABOUR DISPUTE OR ACT OF GOD.
For the purposes of this Section 11, “K&A” includes its employees, subcontractors, and suppliers.
12. GOVERNING LAW AND JURISDICTION
These Terms and Conditions shall be construed in accordance with the laws of the State of Colorado applicable therein without regard to principles of conflict of law.
13. EXPORT CONTROL
By your purchasing Product and thereby accepting this agreement you confirm that you are not located in (or a national resident of) any country under U.S. Economic embargo or sanction, not identified on any U.S. Department of Commerce Denied Persons List, Entity List of proliferation concern, on the US State Department Debarred Parties List or Treasury Department Designated Nationals exclusion list and not directly or indirectly involved in the financing, commission or support of terrorist activities or in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the U.S. Export Administration Regulations (15 CRF 744) and hardware, software, technology, or services may not be exported, re-exported, transferred or downloaded to any such entity.
The headings of each of these terms and conditions are for convenience of reference only and shall not form part of these terms and conditions. Such headings shall be ignored in the interpretation or construction of any of these terms and conditions.
15. NO ASSIGNMENT
Customer may not assign its rights or obligations under this Agreement without the express written consent of K&A.
16. INVALIDITY OF PROVISIONS
If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, such provision shall be enforced to the fullest extent permitted by applicable law, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
K&A Products are manufactured by outside manufacturers for standard commercial uses and are not intended to be sold or licensed for use in critical safety systems or nuclear facilities. K&A is not responsible for delay or failure to perform due to causes beyond its reasonable control. All documents referred to in these Terms and Conditions of Sale are incorporated into these Terms and Conditions of Sale and are available from K&A upon request. By ordering a K&A Product, User agrees to the above terms and conditions.
These Terms and Conditions of Sale supersede any preprinted terms on Customer’s orders and are part of any Purchase Agreement or Product Sales. Any previous written or oral communications or representations by either party related to the Products and may not be amended by Customer without prior written consent of K&A.