Kinly Inc.

Terms and Conditions of Sale (US)

1. INTERPRETATION

In these conditions the following expressions shall bear the following meanings: “Kinly ” Kinly, Inc.

“Contract” The contract incorporating these conditions. “Goods” The goods agreed to be supplied to the customer.

“Rights” The rights to be granted to the customer without which (because of the copyright or other similar rights of Kinly or others) the customer would be unable to use or otherwise deal with the Goods for the purposes contemplated by the Contract.

“Services” The services agreed to be supplied to the customer.


2. OVERRIDING PROVISIONS

All quotations are made and all orders are accepted subject to these conditions (save insofar as the same are varied by or inconsistent with terms and conditions expressly agreed by Kinly in writing). In the event of conflict between these conditions and the terms and conditions of the customer’s enquiry, order and acceptance (including printed terms and conditions) these conditions shall prevail unless otherwise expressly agreed by Kinly in writing.


3. PRICES

Unless the contrary is expressly agreed:

  • Prices are Kinly’s current prices. The prices payable shall be those ruling at the date of dispatch and Kinly reserves the right to amend its quoted prices at any time prior to the date of dispatch.
  • Prices are exclusive of IMPORT DUTIES, TAX and VAT which are the responsibility of the buyer.
  • Prices are based on information provided by the customer and upon the assumption that the Goods and Services can be provided without amendment, interruption or delay caused by the customer any of which may cause the price to be varied.
  • Prices exclude delivery charges which are the responsibility of the customer.


4. PAYMENT

  • Maintenance Contracts are due and payable in advance of maintenance coverage beginning.
  • Subject to the customer’s credit rating, the standard terms of payment (other than Maintenance Contracts) are fifty per cent (50%) of the total purchase price paid with the submission of the customer’s purchase order and the remaining fifty per cent (50%) to be paid within thirty (30) days following the date of issue of the final invoice. In the event where Installation or Service is provided by Kinly and the customer, their contractor(s) or agents, through no fault of Kinly, causes the project to be stopped for an aggregate total of 30 days, all Goods provided and Services performed will be invoiced by Kinly and payable immediately by the customer.
  • Without prejudice to any other right or remedy Kinly reserves the right to suspend delivery or to determine the Contract is void if there is any outstanding liability owing to it by the customer, or if in its opinion, the customer will not be able to meet any future or existing commitment to it.
  • Kinly reserves the right to charge interest on undisputed overdue sums from the date payable at the rate of the higher of the maximum legal rate or eighteen (18.0) per cent annually, one and one half per cent (1.5%) per month for the time being both before and after any judgment.


5. DELAY

Any date agreed between the parties for delivery of the Goods or performance of the Services shall be estimated date only and Kinly shall not be liable for any loss or damage occurring through any failure or inability to meet any such date.


6. TITLE AND RISK

(a) Risk in the Goods will pass to the customer on delivery to the customer or the customer’s carrier or nominee.

(b) Title in the Goods will not pass until they have been paid for.

  • Kinly shall be entitled to recover possession of Goods not paid for by the customer (and enter into the premises of the customer for that purpose) if they are not paid for by the due date.


7. WARRANTY AND GUARANTEE

  • If any part of the hardware Goods should prove defective in materials or workmanship under normal operation or service, such Goods will be repaired or replaced only in accordance with any warranty coverage and terms provided by the manufacturer of the Goods PROVIDED THAT no unauthorized modifications to the Goods or to the system of which the Goods forms a part of, have taken place. Kinly is not responsible for the cost of labor or other expenses incurred in replacing defective or non-conforming parts, unless the product is covered under a Maintenance Contract with Kinly.
  • In the unlikely event that any Goods do not perform in accordance with published specifications the customer may return the undamaged Goods within fifteen (15) days from receipt together with original packaging and documentation to obtain a full refund of payments made to Kinly in respect of those Goods.


8. LIMITATIONS AND EXCLUSIONS

(a) No Kinly employee has authority to give any verbal warranty or representation as to the capability or fitness for any particular purpose of any of the Goods or Services.

  • Subject as above Kinly’s liability for damage caused to tangible property and arising from defects in the Goods supplied or in the course of providing the Service shall be limited to the cost of the Goods and Services, and the customer shall notify Kinly with a detailed description in writing of issues and damages to provide Kinly with a reasonable time to correct the reported issues prior to remediation by customer or customer’s vendor. Kinly’s employees will be accompanied and supervised by a customer’s employee to disconnect or reconnect equipment not covered by the Contract.
  • Subject as above Kinly’s liability for its failure to provide the Services or any part of them, or to perform them properly, or allow exercise of the Rights, shall be limited to sums received from the customer in respect to the supply of the Services or the grant of the Rights, and/or the cost of substitution of equal Services in quality and value.
  • Subject as above Kinly’s liability in respect of the Goods (and whether arising under any terms, conditions and warranty expressed herein or implied by virtue of common law or statute or in tort) shall be limited to the cost of repairing (or at Kinly’s option) replacing the Goods and Kinly shall not be liable for any consequential loss or loss of profit or business.


9. VARIATIONS

Goods supplied are subject to variation from specification and/or sample. Immaterial variation shall not permit customers to reject Goods.


10. SUPPORT AND MAINTENANCE

  • Kinly offers support and maintenance services for its products which (subject to terms of its agreements for such services) cover the adjustment and enhancement or faulty or inadequate equipment.
  • Where the Services include support and maintenance they will be provided on the terms of Kinly’s standard support agreements or offered on the standard support terms of any third party owner of the relevant software.
  • For the avoidance of doubt, maintenance coverage is not provided as part of these terms and conditions of sale and its provision shall be subject to a separate contract, Service Level Agreement or purchase order to be signed by both Kinly and the customer.


11. VALID REASON FOR EXPORT

The customer shall obtain all necessary permits to ensure that Goods destined overseas may lawfully be delivered to their destination and paid for.


12. FORCE MAJEURE

Kinly will not be liable for any failure to perform or difference in performance attributable to accidents or circumstances beyond its reasonable control and in particular (but not exclusively) industrial actions, war, shortage of materials, fire, natural physical disaster, epidemic, act or restrain of government. In any such event Kinly shall be at liberty on notice to the customer, to make partial delivery or performance only or to determine the Contract is completed, and in either case without prejudice to its rights accrued there under.


13. LAW

These terms and conditions shall be governed and construed in accordance with the laws of the State of New Jersey, exclusive of conflicts of law principles. The parties agree that any disputes under this Contract shall be brought in Morris County, New Jersey.


14. INTRODUCTION

Should any customer or customer’s parent, subsidiary, associate or affiliated company, employ or contract the services of, or otherwise engage any employee or agent of Kinly within the period of 12 months of that employee or agent having provided services to the customer, Kinly shall be deemed to have introduced that employee or agent to said customer or its parent, subsidiary, associate or affiliated company as the case may be and in that event will pay to Kinly an introduction fee of either (a) twenty-five percent (100%) of the commencing annual gross salary or contractual payments to be made by said customer or its parent, subsidiary, associate of affiliated company to the said employee or agent, or (b) twenty-five percent (100%) of the final annual gross salary or contractual payments made by Kinly to the said employee or agent.