Terms of Service
KNS Consulting, Inc. ("KNS Consulting") and the Customer specified herein ("Customer") agree that all equipment, software and services obtained from KNS Consulting hereunder (the "System") will be furnished in accordance with the following terms and conditions (the "Agreement"). Customer acknowledges that it has read, understands and agrees to this Agreement.
1. ENTIRE AGREEMENT
Customer's order of the System constitutes an offer to purchase the items listed above on the terms and conditions contained in this Agreement. This Agreement represent the entire agreement between the parties hereto and a final expression of their understanding with respect to the purchase of equipment, software licenses and services covered herein and supersedes all prior written agreements, oral agreements, representations, understandings or negotiations with respect to the subject matter hereof. KNS Consulting's acceptance of this offer is expressly condition on Customer's assent to this Agreement, and KNS Consulting's hereby objects to any different or additional terms contained in any purchase order, confirmation, or other writing, which writing will have no force or effect. This Agreement may not be modified except in writing signed by Customer and authorized by officer of KNS Consulting. KNS Consulting and Customer agree that, in absence of a specific document signed by both KNS Consulting and Customer, the terms and conditions constituting this Agreement (other than the quotation price) will also govern any subsequent transaction(s) between them.
2. DELIVERY
Delivery will be deemed made when substantially all of the items listed herein are physically delivered to the Customer site. KNS Consulting will not be liable for loss or damage caused by lack of availability of equipment, software or other materials, delays in Customer providing the required site facilities, scheduling of KNS Consulting personnel, causes beyond KNS Consulting's reasonable control or any other reasons. Freight charges will be prepaid and added to KNS Consulting's invoice. All shipments will be made at Customer's risk. KNS Consulting reserves the right to make delivery in installments. All installments may be separately invoiced and must be paid for when due without regard to subsequent deliveries. Delay in delivery of any installment will not receive Customer of its obligation to accept remaining deliveries.
3. SOFTWARE LICENSE
KNS Consulting hereby grants to Customer a nontransferable nonexclusive right to use any software furnished hereunder pursuant to the applicable vendor license agreements. The payment of the license fee(s) will entitle Customer to use the software as specified in the vendor's license agreement. Customer must comply with the vendor's license agreement in all respects and agrees to indemnify, defend and hold KNS Consulting harmless from and against all claims, actions, proceedings, liabilities, losses or expenses (including attorney's fees) arising from or related to Customer's breaches thereof.
4. BILLING AND PAYMENT
The Contract Price will be payable according to the terms shown on the face hereof. All amounts hereunder will be due COD or by credit card unless Customer has specifically applied for and KNS Consulting has approved payment terms in writing. In such event, amounts due hereunder must be prepaid net 20 days from the date of KNS Consulting's invoice. If a deposit is specified in the Quotation, it must be paid by Customer and is non-refundable. If Customer breaches this Agreement, KNS Consulting may, in addition to any other remedies available under applicable law, retain said deposit as liquidated damages, or apply said deposit to its actual damages. If Customer fails to make any payment within five days of its due date, the entire balance is immediately due and payable and will bear interest from the due date at the rate of 10% per month, or the highest rate allowed by law, whichever is less. In cases where Customer does not pay an outstanding bill after a period of sixty (60) days, KNS Consulting reserves the right to send all outstanding bills to our Collection Agency of choice where further legal action against Customer will occur. All payments must be made to KNS Consulting's home office in Santa Ana, California. Customer will pay and agrees to indemnify, defend or hold KNS Consulting harmless from all sales, use, value added or other ad valorum taxes levied on this transaction.
5. ACCEPTANCE
Within ten (10) days after completion of installation of the System (the "Acceptance Test Period"), Customer shall test the System to verify performance in accordance with the applicable warranties. The System will be deemed accepted by Customer when: (a) no written notice of defect(s) is given by Customer to KNS Consulting within the Acceptance Test Period; (b) no failure(s) of the System to comply with the applicable warranties remain uncorrected at the end of the Acceptance Test Period; or (c) Customer uses the System for live operations.
6. MAINTENANCE AND SUPPORT
Any equipment or software service provided by KNS Consulting shall be performed in accordance with a written Service Agreement, in the absence of which KNS Consulting's obligation for maintenance and support will not extend beyond the equipment manufacturers' warranty period.
7. WARRANTY
All equipment and software provided hereunder is warranted by the manufacturers thereof, not by KNS Consulting. If Customer experiences problems with the System during the warranty period(s), it may contact KNS Consulting at (866) 895-2504. KNS Consulting will assist Customer in trouble shooting the problem(s) and in contacting the vendors under applicable warranties. Warranties of items provided hereunder do not include failures and/or defects caused by fire, accident, abuse, Customer's misuse, powerline fluctuations, acts of God, conductive materials, fluids or other foreign matter entering the equipment, service or repair by third persons, labor and parts necessary for the recreation or reacquisition of data lost for any reason whatsoever, or supplies and consumables such as ribbons, paper, batteries and accessories. The occurrence of any of the foregoing circumstances may result in additional charges. THE FOREGOING WARRANT IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. OBLIGATIONS OF THE CUSTOMER
Customer must: (a) provide insulated, isolated ground and clean line electric power in conformance with KNS Consulting wiring specifications, including, without limitation, installation of an ancillary power conditioning device at Customer's expense if deemed necessary by KNS Consulting, and (b) maintain at all times an appropriate environment for electronic equipment, with respect to temperature, humidity, vibration, etc.
9. GRANT OF SECURITY INTEREST
Customer hereby grants KNS Consulting a security interest in the items purchased and in any and all additions and accessions thereto, replacements therefore and proceeds thereof ("Collateral") as security for its obligations under this Agreement. Customer will execute and deliver to KNS Consulting financing statements as KNS Consulting may reasonably request. Upon Customer's default, KNS Consulting may exercise any and all of its remedies as a secured creditor. Without limiting the generality of the foregoing, KNS Consulting may at any time enter Customer's premises with or without notice to inspect the System and, in the event of a default by Customer, request Customer to assemble the Collateral and make it available at a place designated KNS Consulting and/or enter into Customer's premises with or without notice for the purpose of repossession of the System. Customer may not (a) place or permit any other liens or encumbrances on the System, (b) use or permit the use of the System or any item or component thereof in any careless or negligent manner, (c) make or permit any alterations in the System, or any item or component thereof.
10. LIMITATIONS OF LIABILITY
IN NO EVENT WILL KNS CONSULTING OR ITS SUPPLIERS, SUBCONTRACTORS, OR AFFILIATES BE LIABLE TO CUSTOMER FOR ANY DAMAGE IN EXCESS OF THE CONTRACT PRICE, OR FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST BUSINESS, LOST PROFITS OR LOST DATA, EVEN IF KNS Consulting HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.
11. MEDIATION
In the event of a dispute between Customer and KNS Consulting arising from this Agreement, or the interpretation thereof, before filing a lawsuit, the parties agree to first submit the dispute to nonbinding mediation with the American Arbitration Association or another mutually acceptable mediator in Orange County, California, with each party bearing one-half (½) of the mediator's fees. Except as expressly set forth below, if any party files a lawsuit without complying with the foregoing requirement, that party shall waive its right to any attorneys' fees to which such a party might otherwise be entitled in such a lawsuit under Section 12 of this Agreement. Notwithstanding the foregoing: (a) if a party submits a written request to mediate a reasonable steps to initiate mediation within thirty (30) days of receipt of such notice, the party requesting the mediation will then be free to file lawsuit and there shall be no waiver of any entitlement to attorneys' fees under the preceding sentence; and (b) the parties will be entitled to obtain equitable relief, such as by temporary restraining order or injunction, in State or Federal Court to prevent any violation of any of the covenants, conditions or previsions contained in this Agreement, pending mediation of any dispute. Such remedies shall be in addition to all other remedies available to the parties including, but not limited to, the right to recover any and all monetary damages that may be sustained as a result of another party's breach. No action or proceeding arising from or related to this Agreement may be initiated by a party more than one year after the cause of action therefore has arisen.
12. GENERAL TERMS
In the event any suit is brought by any party hereto to enforce or interpret this Agreement, the prevailing party will be entitled to the payment of its reasonable attorney's fees and costs. If any term, provision, condition or covenant of this Agreement is held to be invalid, void or unenforceable, the rest of the Agreement will remain in full force and effect and will no way be affected, impaired or invalidated. No term or provision hereof will be deemed waived and no breach excused unless such a waiver or consent is in writing and signed by the party claimed to have waived or consented. No consent by any party to or waiver of a breach by the other will constitute consent to, waiver of, or excuse for any other different or subsequent breach. Customer may not assign this Agreement without the prior written consent of KNS Consulting. This Agreement will be binding on and will inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto. A facsimile of this Agreement may be used as an original. This Agreement may be signed in counterparts, and each such counterpart shall be deemed a duplicate original thereof. This transaction will be governed by the laws of the State of California, without regard to its conflict of laws provisions. Customer consents to the exclusive jurisdiction of the state or federal courts located in the County of Orange, California with respect to any action or proceeding arising from or related to this Agreement.
13. CHANGES AND CORRECTIONS
KNS Consulting will occasionally update the Terms of Service to further protect KNS Consulting and Customer. KNS Consulting encourages Customer to periodically review the Terms of Service to be informed of how KNS Consulting is protecting both Parties.
Last updated 09/16/2008