Terms and Conditions of Sale

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Index
Definitions Catalog Listings Pricing Quotations Orders Software License To Place an Order Payment Methods for Accounts Payment Taxes Title Delivery Shipping & Handling Insurance Export Documents & Licenses Acceptance Disputes Shipment Damage Cancellation (Abridgment) Change Policy Testing Inspection On Site Receipt of Equipment and Installation	"100% Satisfaction Guarantee" Return Policy - Standard Products "100% Satisfaction Guarantee" Return Policy - Accessories Returns Repairs Hazardous Materials Maintenance and Spare Parts Kayden Hardware Warranty Warranty Repair or Replacement (General) No Other Warranties No Liability For Consequential Damages Warning Limited Indemnity Against Infringement Acknowledgment / Governing Law Liability General Information Products Availability Typographical Errors Termination Force Majeure Invalidity of Provisions Headings

Definitions

	a.		"Delivery" means standard Kayden shipping to and arrival at the receiving area at the "Ship To" address specified in Customer’s order.
	b.		"Products" means hardware, software, documentation, accessories, supplies, parts and upgrades that are determined by Kayden to be available from Kayden upon receipt of Customer’s order. "Custom Products" means Products modified, designed or manufactured to meet Customer requirements.
	c.		"Specifications" means specific technical information about Kayden Products which is published in Kayden Product manuals and technical data sheets in effect on the date Kayden ships Customer’s order.

Customer and Kayden Instruments ("Kayden") agree that the purchase and sales of Kayden hardware and software Products ("the Products") are made under these terms and conditions, and that KAYDEN SHALL NOT BE BOUND BY CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS. Customer’s order and purchase of the Products shall constitute acceptance of these terms and conditions. By accepting delivery of the Products described on the invoice, Customer agrees to be bound by and accepts these terms and conditions. These terms and conditions may not be supplemented, altered or modified by the use of any other document(s). Any attempt to modify, supplement or amend these terms and conditions will be null and void unless agreed to in writing by Kayden.

Catalog Listings

Everything listed in the current Kayden Catalog is available, and all specifications and descriptions are current, as of the time of publication. Product listings, specifications, availability and pricing are subject to change without notice. Where trade literature is provided to Customers, it is considered to be for reference only. Exact Product specifications can be obtained upon request.

Pricing

Every effort has been made to ensure the prices provided reflect the latest information available. However, all prices are subject to change without notice. Prices are available in U.S. and Canadian dollars.

Prices are valid for the period quoted by Kayden or for the applicable purchase agreement ordering period, whichever expires first. Product prices for an order remain valid for ninety (90) days from the original order date unless otherwise quoted by Kayden. Change orders that extend Delivery beyond those validity periods become new orders at prices in effect when Kayden receives the change orders.

Quotations

All quotations shall expire sixty (60) days from date of issuance, unless otherwise set forth on the quotation or agreed in writing by Kayden’s appropriate representative. No digital formats for quotes will be honored.

Orders

All orders are subject to acceptance by an authorized employee of Kayden. Kayden booking of an order shall constitute its acceptance of an order. Changes to orders shall not be binding upon nor put into effect by Kayden unless confirmed in writing by Kayden’s appropriate representative.

Standard Products - Orders Over US$75,000
Orders of US$75,000 and greater require a deposit of 25% of the total order value prior to the commencement of manufacturing.
Custom Products - Orders Over US$30,000
Orders of US$30,000 and greater require a deposit of 35% of the total order value prior to the commencement of manufacturing.

Software License

License Grant
All software programs which are embodied in human readable source form or machine readable object form and which include, but are not limited to, programs having a series of instructions, statements and data, and related materials provided by Kayden are the property of Kayden and/or others and are subject to the terms set forth in this License, in which Purchaser is provided solely with a personal and nonexclusive license to use such programs solely for their internal business purposes in the country in which the software was furnished and for execution on the system for which it was provided.
Copyright and Title
No title to the intellectual property in the software programs or material is transferred to Purchaser under this license. Kayden and/or its suppliers own all software and its copyrights. The software is protected by United States and Canadian copyright laws and international treaty provisions. Therefore, Purchaser must treat the Software like any other copyrighted material except that Purchaser may make copies (provided applicable licensing fees have been paid to Kayden) of the programs for use only with the system for which such programs were acquired. Purchaser must reproduce and include the copyright notice on any backup copy. The written materials and firmware may not be copied.
Restricted Use
Purchaser shall not export or re-export the programs or material without the appropriate United States and Foreign government licenses. Purchaser agrees not to reverse engineer, decompile, or disassemble the Software. Purchaser may not rent or lease the Software to any third parties, but may transfer the Software and written materials on a permanent basis provided no copies are retained and the recipient agrees to the terms of this Software License. Storage media, which Purchaser received from Kayden, may contain certain Software for which Kayden has not accepted an order from Purchaser for a Software License. If Purchaser desires to license this Software, Purchaser must obtain the appropriate Software License from Kayden.

To Place an Order

Browse through Kayden’s print or online catalog, then call your local Kayden Distributor, or contact Kayden directly by e-mail, fax, courier, mail or phone. There is no minimum order amount. However, any order under US$35.00 will be subject to a US$10.00 service charge.

Payment Methods for Accounts

Kayden accepts payment by:

Letters of Credit
Payment may be made by irrevocable confirmed L/C provided that the total invoice value of the export order is more than U.S. $2500.00. Multi-line L/C orders must allow for two partial shipments and be valid for a period of at least one hundred fifty (150) days. L/C fees will be charged to Customers account.
Credit Cards
We accept VISA and MasterCard. We do not accept debit cards. We accept up to two credit cards for a single order, however the credit card holder’s address must be the same as the billing address when purchasing Products. Please note - we will seek to obtain an immediate authorization from your card issuer to reserve funds for your purchase.
EFT - Electronic Funds Transfer
Kayden prefers to receive account payments electronically.
With our EFT Payment Plan, Kayden mails you an invoice notifying you of the funds being due as per your account terms; your bank transfers the amount of the invoice from your checking account to the specified Kayden account. Each payment is shown on your monthly bank statement.

At Kayden we sincerely appreciate working with corporations that endeavor to reduce the amount of paperbased transactions.
Check
If your business, institution or government agency wishes to pay by check, you must first have an account with Kayden. An approved Credit Application must be on file with Kayden. Once approved, checks will be accepted as a payment option.
Wire Transfer
Kayden accepts bank wire transfers as a valid form of payment.

Payment

Payment terms are subject to Kayden credit approval. Payment is due thirty(30) days from Kayden’s invoice date. Kayden may change credit or payment terms at any time when, in Kayden’s opinion, Customer’s financial condition, previous payment record, or the nature of Customer’s relationship with Kayden so warrants.

Kayden may discontinue performance if Customer fails to pay any sum due, or fails to perform under this or any other Kayden agreement if, after ten (10) days written notice, the failure has not been cured.

Taxes

Product prices are exclusive of, and Customer shall pay, applicable sales, use, service, value added or like taxes, unless Customer has provided Kayden with an appropriate exemption certificate for the delivery destination acceptable to the applicable taxing authorities. If you wish to avoid sales tax charges, you must have a sales tax exemption certificate on file with Kayden. Sales tax will always be charged unless otherwise indicated.

Title

Title to the Products shall pass at Kayden’s factory. Kayden retains a security interest and right of possession in the Products until Customer makes full payment.

Delivery

Kayden shall deliver the Products to a carrier at Kayden’s factory and, if the Products are sold to a Customer outside Canada, shall clear the Products for export destined outside Canada. Customer shall pay all applicable freight charges, applicable import duties, and other necessary fees and shall bear the risks of carrying out customs formalities and clearance. Orders are shipped as close as possible to the Customer’s requested shipment date, if specified. Kayden may deliver the Products ordered in installments. Delivery or shipment dates given by Kayden are estimates only and Kayden is not liable for any loss, damage, cost or expense for any failure to deliver in accordance with the given delivery or shipment date. Kayden will make reasonable efforts to meet Customer’s Delivery requirements. If Kayden is unable to meet Customer’s Delivery requirements, alternative arrangements may be agreed. In the absence of such agreement, Customer’s sole remedy is to cancel the order. All special handling charges shall be borne by Customer. Shipment dates are scheduled after acceptance of orders and receipt of necessary documents. Claims for shipment shortage shall be deemed waived unless presented to Kayden in writing within forty-five (45) days of shipment.

Shipping & Handling

All freight costs for orders shipped within Canada are the responsibility of the customer. Shipping method is per customer request.

For shipments to the US, customer will be responsible for ground freight costs. These costs will be added to the invoice. Kayden may ship via air freight but will accept responsibility for any additional costs. Also, Kayden will pay all brokerage costs and any applicable duties.

For shipments to any other country other than the US and Canada, all freight costs and any other export fees are the responsibility of the customer. Kayden will pay brokerage and duty fees only.

Large Items & Special Handling
For heavy shipments, common carrier truck is most economical. Kayden also ships via ocean transport for international Customers. Charges are F.O.B. shipping point.

The shipping point in all cases is Calgary, Alberta, Canada.

Insurance

Customer is responsible for insuring each shipment from Kayden’s factory, should insurance be desired.

Export Documents & Licenses

International Customers purchasing Products requiring an Export License will be contacted for end use information in order for Kayden to apply for the appropriate license. Kayden will not ship Products requiring an Export License unless and until such Export License has been obtained. An additional fee may be applied to any export order that requires Kayden to make an Export License application.

Acceptance

Acceptance for the Products by Customer occurs upon Delivery.

Disputes

All disputes on invoices must be reported within twenty (20) days of invoice date. All disputes on goods or services must be reported within ten (10) days of receipt of said goods or services.

Shipment Damage

Our merchandise is carefully packed for shipment in compliance with Carrier requirements. In the event an item is damaged in shipment, you must submit a claim to the Carrier within 15 days of delivery. We advise that you unpack and inspect all merchandise immediately upon receiving it. If damage does not become apparent until the shipment is unpacked, make a request within 72 hours for inspection by the carrier’s agent and file with the Carrier. Any external evidence of loss or damage must be noted on the freight bill or Carrier’s receipt and signed by the carrier’s agent. Failure to do this may result in the Carrier refusing to honor the claim. Returned equipment shall remain the property of the Customer and all related costs shall be at Customer’s expense.

Cancellation (Abridgment)

Should the Customer, for any reason, desire to cancel his/her current order (prior to shipping) he/she may do so at anytime after order placement but before the order is shipped from Kayden’s facility. Where Custom Products, special equipment or services are involved, Customer shall be responsible for all related work in progress; however, Kayden shall take responsible steps to mitigate costs immediately upon receipt of a written cancellation notice from Customer. To provide our Customers with a fair means of canceling orders of Standard Products, we offer a cascading fee schedule based on Product quantity and type. Review the Cancellation Policy. Kayden may terminate any order if any representations made by Customer to Kayden are false or misleading.

Change Policy

Changes to orders shall not be binding upon nor be put into effect by Kayden unless confirmed in writing by Kayden’s appropriate representative. All changes affecting the equipment configuration or otherwise affecting the scope of the order are to be documented in writing for approval and authorization to incorporate such changes into the order. All changes authorized by Purchaser are binding only if accepted by Kayden, and may result in price, delivery and/or condition changes. Pricing of changes shall be based on the then current prices. If an extension of delivery is required beyond the original schedule, escalation shall be as agreed. Letter(s) of credit, if applicable, shall be extended and the values enhanced as necessary to reflect changes in price and payment arrangements.

Testing

Any additional tests or inspections requested by Customer beyond Kayden’s standard manufacturing procedures shall be for Customer’s account, unless specified otherwise in writing by Kayden.

Inspection

Customer will have the right to inspect the goods on tender by Kayden. If Customer receives the goods or takes possession of them without inspecting, this will constitute a waiver of its right to inspect. Further, Customer will have the opportunity, at the time and place of inspection, and at its sole expense, to run adequate tests to determine whether the goods are free from defects. If the Customer is to use a portion of the goods for the purpose of test and evaluation and said testing damages the goods, the Customer shall compensate Kayden, at the contract prices, for all goods so damaged, although the goods may be rejected or unacceptable to Customer. In the event Customer rejects any shipment of goods, he may elect to retain a part of the shipment and return the balance.

On-Site Receipt of Equipment and Installation

Customer shall be responsible for receiving, installing, starting up and maintaining all equipment, unless specified in writing by Kayden.

"100% Satisfaction Guarantee" Return Policy - Standard Products (Abridgment)

Standard Products are eligible for the 60-Day 100% Satisfaction Guarantee. If you bought new Standard Products directly from Kayden, you may return them to Kayden up to 60 days from the date of invoice for a refund or credit of the Product purchase price provided the quantity of units does not exceed twenty-five (nominal restocking fees apply to only those quantities exceeding twenty-five units). Custom Products are not eligible for this guarantee as they are manufactured specifically to the Customer’s individual and unique requirements. End-user Customers who bought reconditioned or refurbished Products from Kayden, may return them to Kayden up to 30 days after the date of invoice for a refund or credit of the Product purchase price. Please note the refund or credit will not include any charges for special documentation, special equipment, special services, special approvals, drawings, certificates, equipment tags, setpoints, flow curves, x-rays, dye penetration tests, opened software, shipping or insurance shown on your invoice. Please review the Return Policy in detail.

Visit our Returns Center and complete the Return Authorization Form to obtain a Return Materials Authorization (RMA) Number. Returns without this authorization may not be accepted. To expedite the process of your refund or credit, Kayden expects you to return the Products to Kayden in their original or equivalent packaging within 10 days of the date that Kayden issues the Return Materials Authorization Number. Returns arriving outside of the ten-day window are subject to depreciation of the final refund/credit. Incomplete returns may not be credited. You must also prepay shipping charges and insure the shipment or accept the risk of loss or damage during shipment. You may return software for refund or credit only if the sealed package containing the diskette(s) or CD(s) is unopened. Returned Products must be in as-new condition, and all of the manuals, diskette(s), CD(s), and other items included with a Product must be returned with it.

This "60-Day 100% Satisfaction Guarantee" Return Policy does not apply to Kayden Accessory Products, which may be returned under Kayden’s then-current Accessory Return Policy. See Kayden Accessory Return Policy. In addition, reconditioned parts purchased through Kayden Spare Parts Sales in the United States and Canada are non-returnable.

Some restrictions and limitations apply.

"100% Satisfaction Guarantee" Return Policy - Accessories (Abridgment)

If you bought new Kayden Accessory Products directly from Kayden, you may return the as-new Products to Kayden up to 30 days from the date of invoice for a refund or credit of the Product purchase price. Custom Accessories are not eligible for the 30-Day 100% Satisfaction Guarantee as they are manufactured specifically to the Customer’s individual and unique requirements. End-user Customers who bought reconditioned or refurbished Accessories from Kayden, may return them to Kayden up to 10 days after the date of invoice for a refund or credit of the Product purchase price. Please note the refund or credit will not include any charges for special documentation, special equipment, special services, special approvals, drawings, certificates, equipment tags, setpoints, flow curves, x-rays, dye penetration tests, opened software, shipping or insurance shown on your invoice. Please review the Return Policy in detail.

This Accessory Return Policy does not apply to Kayden ‘Standard Products’, which may be returned under Kayden’s then-current "100% Satisfaction Guarantee" return policy.

Some restrictions and limitations apply.

Returns

Returns will be accepted if request is in compliance with Kayden's current Returns Policy.

Repairs

If after examining and testing a Product returned for repair, Kayden concludes that the returned Product is not defective, Customer will be notified, the Product returned at Customer’s expense, and a charge made for examination and testing. Complete a Return Authorization Form to obtain a Return Materials Authorization (RMA) Number. Returns without this authorization may not be accepted.

Hazardous Materials

Kayden does not accept the return of Products that are contaminated with any hazardous material. It is solely the Customer’s responsibility to ensure any and all items returned to Kayden have been thoroughly and completely decontaminated.

Maintenance and Spare Parts

Maintenance service and spare parts are not included in the price of the Product unless agreed upon in writing by Kayden. Orders for parts or repairs shall be subject to a minimum billing charge.

Kayden Hardware Warranty

	a.		Product warranty period and additional information is available with Products, on quotations, or upon request.
	b.		Products purchased from Kayden will receive the standard warranty in the country of purchase. If Customer moves such Products to another country where Kayden has Support presence, then Customer will receive the destination country standard warranty.
	c.		Customer may receive a different warranty when the Product is purchased as part of a system. Kayden reserves the right to change the warranty. Such changes will affect only new orders.
	d.		The warranty period begins on the date of Delivery.
	e.		If Customer transfers a Product to another user, warranty service is available to that user for the remainder of the warranty period.
	f.		Kayden warrants Kayden hardware Products against defects in materials and workmanship. Kayden further warrants that Kayden hardware Products conform to Specifications.
	g.		Kayden warrants that Software will not fail to execute its programming instructions due to defects in materials and workmanship when properly installed and used on the Device designated by Kayden. Kayden further warrants that Kayden owned standard Software will substantially conform to Specifications. Kayden does not warrant that Software will operate in hardware and software combinations selected by Customer, or meet requirements specified by Customer.
	h.		Kayden does not warrant that the operation of Products will be uninterrupted or error free.
	i.		If Kayden receives notice of defects or non-conformance to hardware Specifications, or substantial nonconformance to Kayden owned standard Software Specifications during the warranty period, Kayden will, at its option, repair or replace the affected Products. If Kayden is unable, within a reasonable time, to repair, replace or correct a defect or non-conformance in a Product to a condition as warranted, Customer will be entitled to a refund of the purchase price upon prompt return of the Product to Kayden. Customer will pay expenses for return of such Products to Kayden. Kayden will pay expenses for shipment of repaired or replacement Products.
	j.		Kayden warrants that Kayden Support will be provided in a professional and workmanlike manner. Some newly manufactured Kayden Products may contain, and Kayden Support may use, remanufactured parts which are equivalent to new in performance.
	k.		The warranties provided herein will apply only to those Products and Support which are branded by Kayden with a Kayden trademark ("Kayden Branded"). Kayden does not warrant any third party Products or Support even if included with other Kayden Branded Products or Support. Furthermore, Kayden provides all such third party Products and Support AS IS. However, the original manufacturers or suppliers may provide their own warranties as specified in the documentation accompanying such third party Products and Support.
	l.		The warranties provided herein do not apply to defects resulting from: (a) improper or inadequate maintenance or calibration; (b) software, interfacing, parts or supplies not supplied by Kayden; (c) unauthorized repair, maintenance or modification; (d) usage not in accordance with Product instructions; (e) operation outside of the published operating specifications for the Product; (f) improper site preparation or maintenance; (g) problems with electrical power; (h) accident, abuse, negligence, misapplication, misuse, loss or damage in transit; (i) Products that are altered or modified in any way; or (j) exposure to corrosive or abrasive environments.
	m.		THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. TO THE EXTENT PERMITTED BY LAW, KAYDEN SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.

General
The Kayden Hardware Warranty statement gives you, the Customer, express warranty rights from Kayden, the Manufacturer. Kayden will be obligated to honor any such warranty only upon Kayden’s receipt of payment in full for the Product to be warranted. Please read the rest of the Kayden "100% Satisfaction Guarantee" for your Product-specific warranty entitlements. In addition, you may also have other legal rights under applicable local law or special written agreement with Kayden.

Warranty Repair or Replacement

Kayden Hardware
For the specific warranty period described within the Kayden Warranty, Kayden warrants that your Kayden Hardware, Accessory or Supply will be free from defects in materials and workmanship. Except as indicated above, however, Kayden does not warrant that any Kayden Hardware, Accessory or Supply will operate uninterrupted or error-free.
If, during the Product warranty period, Kayden is unable, within a reasonable time, to repair your Product to a condition as warranted, you will be entitled to a refund (in the amount of the Product purchase price) upon prompt return of the Product to your Kayden Authorized Distributor/Support Provider or other Kayden designate. Unless otherwise stated or agreed upon in writing with Kayden, all hardware components must be returned for refund with the electronics.
Kayden software is covered by the Kayden Software Product Limited Warranty located within the warranty section.
Cables and Accessories are covered by their respective Limited Warranties.
Unless otherwise stated, and to the extent permitted by local law, hardware Products may contain re-manufactured parts (equivalent to new in performance) or parts which have been subject to prior incidental use. Kayden may repair or replace hardware Products

	(i)		with Products which are equivalent in performance to the Products being repaired or replaced but which may have been subject to prior use,
	(ii)		with Products which may contain re-manufactured parts equivalent to new in performance or parts which may have been subject to prior incidental use, or
	(iii)		with Products that are equivalent in function to an original Product that has been discontinued.

Non-Kayden Hardware
Non-Kayden hardware Products and components installed either before or after the purchase of your Kayden Product may have different warranty conditions than those of the Kayden Product in which they are installed. All non-Kayden Products or peripherals external to the Kayden unit - such as external cables, adapters, and other peripherals - are covered by the applicable vendor warranties for those Products.
Proof of Purchase and Warranty Period
In order to receive service or support for your hardware Product for the warranty period specified in the Kayden Warranty and Support Guide, proof of the original purchase date (your invoice) of the Product may be required in order to establish the warranty period starting date for your Product. If proof of purchase is not available, the manufacturer’s date (located on the Product) becomes the beginning of the warranty period.
Exclusions
Warranty does not apply to defects resulting from: (a) improper or inadequate maintenance or calibration; (b) software, interfacing, parts or supplies not supplied by Kayden; (c) unauthorized repair, maintenance or modification; (d) usage not in accordance with Product instructions; (e) operation outside of the published operating specifications for the Product; (f) improper site preparation or maintenance; (g) problems with electrical power; (h) accident, abuse, misapplication or misuse; (i) Products that are altered or modified in any way; (j) exposure to corrosive or abrasive environments or (k) such other exclusions as may be expressly set forth in this Warranty Statement.
The warranty does not cover any items that are in one or more of the following categories: special coatings on the sensing element; external devices (except as specifically noted); accessories or parts added to a Kayden instrument after the instrument is shipped from Kayden; accessories or parts added to a Kayden instrument through Kayden’s Product integration department; accessories or parts that are not installed in the Kayden factory; or Kayden Accessory Products. Products that are Kayden branded or that are included on Kayden’s standard price list are covered under this warranty; all other Products (including those sold through the Kayden Accessory program) are not covered.
Authority
No agent, employee or representative of Kayden has any authority to bind Kayden or form a part of the basis of this offer with any affirmation, representation or warranty concerning the goods sold under this Agreement, unless such affirmation, representation or warranty made by an agent, employee or representative of Kayden is specifically included within this written Agreement and signed by an officer of Kayden.
Limited Warranty and Disclaimer
Since the Seller, Kayden does not control the use of its Products, there are no express warranties that extend beyond the description contained herein. SELLER DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE. SINCE SELLER CANNOT CONTROL THE MANNER OF USE OF ITS PRODUCTS AFTER THEIR SALE, SELLER WILL NOT BE RESPONSIBLE FOR ANY CONSEQUENTIAL OR INDIRECT DAMAGES. Kayden hardware Products are warranted against defects in materials and workmanship for a limited period of time from the date Kayden ships the Products to Customer ("Delivery Date") as follows: hardware and software Products (one (1) year); and cables (ninety (90) days). All software Products are licensed to Customer under the terms of the appropriate Kayden Instruments license. For a period of ninety (90) days from the Delivery Date, Kayden software Products (when properly installed) (a) will perform substantially in accordance with the accompanying written materials, and (b) the medium on which the software Product is recorded will be free from defects in materials and workmanship under normal use and service. Any replacement of a licensed software Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Customer must obtain a Return Material Authorization Number from Kayden before returning any Products under warranty to Kayden. Customer shall pay expenses for shipment of repaired or replacement Products to and from Kayden. After examining and testing a returned Product, if Kayden concludes that a returned Product is not defective, Customer will be notified, the Product returned at Customer’s expense, and a charge made for examination and testing. This Limited Warranty is void if failure of the Products has resulted from accident, abuse, misapplication, improper calibration by Customer, Customer supplied third party software not intended for use with the applicable Kayden software, utilization of an improper hardware or software key or unauthorized maintenance or repair. No warranty will apply if Kayden’s Products are in any way altered or modified by Buyer after delivery by Kayden. Kayden’s Products are not recommended or authorized for life support applications, and Buyer assumes all risk and liability in use for such applications. Buyer agrees to indemnify Seller for all damages which may be incurred due to use of Seller’s Products in life support applications.
Limitation of Implied Warranties
To the extent allowed by applicable local law, any implied warranty by the manufacturer of merchantability for fitness for a particular purpose or other implied warranties are hereby limited to the duration of the express warranty set forth above.
Exclusive Remedy
To the extent allowed by applicable local law, the remedies in the warranty statement are your sole and exclusive remedies. Except as indicated above and since Kayden cannot control the manner of use of its Products after their sale, Kayden will, in no event, be liable for loss of data or for direct, special, incidental, consequential (including lost profit), indirect or other damage, whether based in contract, tort or otherwise.
Customer Remedies
Kayden’s sole obligation (and Customer’s sole remedy) with respect to the Limited Warranty shall be to, at its option, return the fees paid or repair/replace any defective Products, provided that Kayden receives written notice of such defects during the applicable warranty period. Customer may not bring an action to enforce its remedies under the foregoing Limited Warranty more than one (1) year after the accrual of such cause of action.

No Other Warranties

Except as expressly set forth above, the Products are provided "as is" without warranty of any kind, and no other warranties, either expressed or implied are made with respect to the Products, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, title or non-infringement or any other warranties that may arise from usage of trade or course of dealing. Kayden does not warrant, guarantee, or make any representations regarding the use of or the results of the use of the Products in terms of correctness, accuracy, reliability, or otherwise and does not warrant that the operation of the Products will be uninterrupted or error free. Kayden expressly disclaims any warranties not stated herein.

No Liability For Consequential Damages

The entire liability of Kayden and its licensers, distributors, and suppliers (including its and their directors, officers, employees, and agents) is set forth above. To the maximum extent permitted by applicable law, in no event shall Kayden and its licensers, distributors, and suppliers (including its and their directors, officers, employees, and agents) be liable for any damages, including, but not limited to, any special, direct, indirect, incidental, exemplary, or consequential damages, expenses, lost profits, lost savings, business interruption, lost business information, or any other damages arising out of the use or inability to use the Products, even if Kayden or its licensers, distributors, and suppliers has been advised of the possibility of such damages. Customer acknowledges that the applicable purchase price or license fee for the Products reflects this allocation of risk. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply. If the foregoing limitation of liability is not enforceable because a Kayden Product sold or licensed to Customer is determined by a court of competent jurisdiction in a final, non-appealable judgment to be defective and to have directly caused bodily injury, death, or property damage, in no event shall Kayden liability for property damage exceed the greater of US$50,000 or fees paid for the specific Product that caused such damage.

Warning

KAYDEN’S PRODUCTS ARE NOT RECOMMENDED OR AUTHORIZED FOR LIFE SUPPORT APPLICATIONS. BUYER AGREES TO INDEMNIFY SELLER FOR ALL DAMAGES WHICH MAY BE INCURRED DUE TO USE OF SELLER’S PRODUCTS IN LIFE SUPPORT APPLICATIONS. (1) KAYDEN PRODUCTS ARE NOT DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY SUITABLE FOR USE IN OR IN CONNECTION WITH SURGICAL IMPLANTS OR AS CRITICAL COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A HUMAN. (2) IN ANY APPLICATION, INCLUDING THE ABOVE, RELIABILITY OF OPERATION OF THE SOFTWARE PRODUCTS CAN BE IMPAIRED BY ADVERSE FACTORS, INCLUDING BUT NOT LIMITED TO FLUCTUATIONS IN ELECTRICAL POWER SUPPLY, COMPUTER HARDWARE MALFUNCTIONS, COMPUTER OPERATING SYSTEM SOFTWARE FITNESS, FITNESS OF COMPILERS AND DEVELOPMENT SOFTWARE USED TO DEVELOP AN APPLICATION, INSTALLATION ERRORS, SOFTWARE AND HARDWARE COMPATIBILITY PROBLEMS, MALFUNCTIONS OR FAILURES OF ELECTRONIC MONITORING OR CONTROL DEVICES, TRANSIENT FAILURES OF ELECTRONIC SYSTEMS (HARDWARE AND/OR SOFTWARE), UNANTICIPATED USES OR MISUSES, OR ERRORS ON THE PART OF THE USER OR APPLICATIONS DESIGNER (ADVERSE FACTORS SUCH AS THESE ARE HEREAFTER COLLECTIVELY TERMED "SYSTEM FAILURES"). ANY APPLICATION WHERE A SYSTEM FAILURE WOULD CREATE A RISK OF HARM TO PROPERTY OR PERSONS (INCLUDING THE RISK OF BODILY INJURY AND DEATH) SHOULD NOT BE RELIANT SOLELY UPON ONE FORM OF ELECTRONIC SYSTEM DUE TO THE RISK OF SYSTEM FAILURE. TO AVOID DAMAGE, INJURY, OR DEATH, THE USER OR APPLICATION DESIGNER MUST TAKE REASONABLY PRUDENT STEPS TO PROTECT AGAINST SYSTEM FAILURES, INCLUDING BUT NOT LIMITED TO BACK-UP OR SHUT DOWN MECHANISMS. BECAUSE EACH END-USER SYSTEM IS CUSTOMIZED AND DIFFERS FROM KAYDENS TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION DESIGNER MAY USE KAYDEN PRODUCTS IN COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR CONTEMPLATED BY KAYDEN, THE USER OR APPLICATION DESIGNER IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF KAYDEN PRODUCTS WHENEVER KAYDEN PRODUCTS ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING, WITHOUT LIMITATION, THE APPROPRIATE DESIGN, PROCESS AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION.

Limited Indemnity Against Infringement

Kayden shall, at its own expense, defend any litigation resulting from sales of the Products to the extent that such litigation alleges that the Products or any part thereof infringes any United States or Canadian patent, copyright, or trademark, provided that such claim does not arise from the use of the Products in combination with equipment or devices not made by Kayden or from modification of the Products, and further provided that Customer notifies Kayden immediately upon its obtaining notice of such impending claim and cooperates fully with Kayden in preparing a defense. If Customer provides to Kayden the authority, assistance, and information Kayden needs to defend or settle such claim, Kayden shall pay any final award of damages in such suit and any expense Customer incurs at Kayden’s written request, but Kayden shall not be liable for a settlement made without its prior written consent. If the Products are held to be infringing and the use thereof is enjoined, Kayden shall, at its option, either (i) procure for the Customer the right to use the Products, (ii) replace the Products with others which do not constitute infringement, or (iii) remove the infringing Products and refund the payment(s) made therefore by Customer. The foregoing states the Customer’s sole remedy for, and Kayden’s entire liability and responsibility for, infringement of any patent, trademark, or copyright relating to the Products provided hereunder. THIS LIMITED INDEMNITY IS IN LIEU OF ANY OTHER STATUTORY OR IMPLIED WARRANTY AGAINST INFRINGEMENT.

Acknowledgment / Governing Law

Customer acknowledges reading these Terms and Conditions, understands them and agrees to be bound by them. A waiver of any provision of this agreement shall not be construed as a waiver or modification of any other term hereof. With respect to all orders accepted by Kayden in Canada, disputes arising in connection with these Terms and Conditions of Sale shall be governed by the laws of the Province of Alberta without regard to principles of conflicts of laws. With respect to all orders accepted by Kayden outside Canada, disputes arising in connection with these Terms and Conditions of Sale shall be governed by the laws of the country and locality in which Kayden accepts the order without regard to principles of conflicts of laws.

Liability

Although we will offer you the best service we possibly can, we make no promise that our print or online catalogs and other services will meet your requirements, or that the service will be uninterrupted, timely, secure or entirely error free. Kayden shall not be liable (even where Kayden has been negligent) for loss of business, loss of revenue, loss of profits or loss of anticipated savings or wasted expenditure. Kayden shall not be liable (even where Kayden has been negligent) for any loss which does not directly result from the actions of Kayden, its subcontractors or agents.

General Information

Kayden reserves the right to alter or withdraw any of our Internet services, to refuse our Internet services to any Customer and to amend these Conditions at any time. Kayden shall not be responsible for any breach of these Conditions caused by circumstances beyond its control. If Kayden is informed of any inaccuracies in the material in the print or online service it will attempt to correct the inaccuracies as soon as it reasonably can.

Products

Kayden’s policy is one of on-going Product update and revision. Kayden may revise and discontinue Products at any time. Kayden 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. Spare parts may be new or reconditioned.

Availability

Product availability may be limited. Products may not be available for immediate delivery. Kayden reserves the right, without liability or prior notice, to revise or cease to make available any or all Products. If there is any revision or cessation, Kayden may ship Products which have the functionality and specifications of the Products ordered but there will be differences in the specifications between what was shipped and what was ordered.

Typographical Errors

In the event that a typographical error is made and a Product is listed at an incorrect price, Kayden reserves the right to correct or cancel these orders whether or not the Customer’s credit card or account has been charged, or Customers order has been confirmed. If the Customer’s credit card or account has already been charged and Kayden subsequently cancels the order, Kayden shall issue a credit for the full amount of the charge. Kayden reserves the right to correct all typographical or clerical errors or omissions which may be present in its prices or specifications.

Termination

Kayden reserves the right to terminate your account if your conduct is found to be inconsistent with these Conditions by giving you 14 days written notice.

Force Majeure

Kayden shall be excused for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of governments, natural catastrophes, acts of Customer, interruptions of transportation or inability to obtain necessary labor or materials. Kayden’s estimated shipping schedule shall be extended by a period of time equal to the time lost because of any excusable delay. In the event Kayden is unable to perform in whole or in part because of any excusable failure to perform, Kayden may cancel orders without liability to Customer.

Invalidity of Provisions

If any provision or provisions of the 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.

Headings

The headings of each of these terms and conditions are for convenience of reference only and shall not be formed part of these terms and conditions. Such headings shall be ignored in the interpretation or construction of any of these terms and conditions.

Updated September 20, 2005