User Terms & Conditions License Agreement
Last updated: October 8, 2018
The Terms & Conditions of user license agreement are applicable for each delivery of products, downloaded application and web dashboard unless otherwise is agreed in writing between Xandar Kardian Inc. 17 State St. Suite 4000, NYC, NY, USA, 10004 (“XANDAR”) and the Customer (as defined below).
The term ¨Customer¨ in the following is defined as the receiver of the deliveries and services rendered by XANDAR. Terms and conditions specifically stated in the quotation of which these general terms are attached to, will be superseding these terms. Unless otherwise agreed in a separate written agreement signed by XANDAR and Customer, XANDAR offers to sell products solely on these terms and conditions and any acceptance is expressly limited to these Terms. If Customer has ordered Products or Services from XANDAR and such order is deemed to be an offer by Customer, XANDAR’s acceptance of such offer is expressly conditional on Customer’s assent to these Terms.
Please read this User Terms & Conditions License Agreement (“Agreement”) carefully before installing XANDAR products, clicking the “I Agree” button, downloading or mobile applications from XANDAR (“Application”).
By clicking the “I Agree” button, downloading or using the Application, you are agreeing to be bound by the terms and conditions of this Agreement.
If you do not agree to the terms of this Agreement, do not click on the “I Agree” button and do not download or use the Application.
XANDAR grants the Customer a revocable, non-exclusive, non-transferable, limited license to utilize XANDAR products as it has been originally intended. Furthermore, the Customer has license to download, install and use the Application or Web Dashboard solely for the Customer’s personal, non-commercial purposes strictly in accordance with the terms of this Agreement.
XANDAR may from time to time charge Customers for monthly usage or licensing fees. All new or revised charges will be provided via written notifications and will not go into effect until 30 days post the notice. Customer reserves the right to terminate the charges within the 30 days’ notice.
The Customer agrees to pay the purchase price within the due date even if the Customer files claims of product defects or deficiencies, and the Customer is in every circumstance obligated to pay the purchase price in due time for those parts of the delivery that is not inadequate or defective. If disputes about product defects or deficiencies arise, the Customer is obligated to deposit the purchase price in Customer’s bank as a security for payment to XANDAR. XANDAR reserves the right to freeze further deliveries should the Customer exceed agreed credit limits or be late with payments to XANDAR.
All estimated delivery dates are calculated to the best of XANDAR’s judgment. XANDAR reserves the right to change the date of delivery because of relations beyond the direct control of XANDAR. Should XANDAR learn that the delivery cannot be made on time, or if a delay from XANDAR has emerged, the Customer shall be notified. The Customer is not entitled to claim delay as a reason for breach of agreement and/or contract with XANDAR, and cannot claim compensation for direct or indirect losses inflicted on the Customer as a consequence of the delay. Liability for damages will under every circumstance be limited to the purchase price of the delayed products. Delays resulting from the delivery being held back because of the Customer’s missing settlement of due invoices or exceeded credit limits are entirely the Customer’s responsibility and liability. Should the delay exceed three (3) months, the Customer is entitled to cancel the order.
The time of delivery shall in every circumstance be postponed with the time found to be reasonable in light of the situation, if the delay is caused by occurrences beyond XANDAR’s control or command, such as but not limited to industrial disputes, strikes, fire, mobilization or similar unforeseen military drafts, requisition, confiscation, currency restrictions, rebellions, shortage of logistics, general shortage in production, rejection of production batches, authority intervention, import- or export restrictions, revoked or rejected licenses, reduction in power supplies, and shortage in supplies resulting from the aforementioned conditions, in Norway or abroad.
Defects & Deficiencies – Complaints
XANDAR provides a twelve (12) month warranty for manufacturing defects from the date of delivery. The Customer cannot claim extended product warranties from XANDAR, unless such an extension has been agreed in writing. XANDAR will inform the Customer about the product-specific warranties upon request. The Customer is obliged to, when receiving the products, check the products for defects or deficiencies. Should the Customer uncover defects or deficiencies in the product, the Customer must file the complaint with XANDAR without groundless delay and at the latest within five (5) days after receiving the products. Unless otherwise is stated, XANDAR assumes the Customer has approved the products. Should the complaint cover hidden defects or deficiencies, the deadline for filing a complaint is extended to three (3) months from the date of delivery. If the Customer has not filed a complaint for defects or deficiencies within the three (3) months after time of delivery, the Customer is not entitled to claim such defects or deficiencies later, unless XANDAR guarantees for the product over a longer period or has acted in deceit. Should the product have defects or deficiencies that XANDAR accepts the responsibility for, XANDAR can replace the product, repair the product, or discount the purchase price. XANDAR shall inform the Customer of the action chosen. Should XANDAR decide to meet the claim by repairing the product or replacing it, the Customer can only revoke the purchase if the action is not conducted within a reasonable time, but not before the Customer has presented XANDAR with a reasonable deadline to complete the repair or replace the product. The Customer cannot claim any further breaches because of defects or deficiencies towards XANDAR, unless these have been caused by gross negligence or intent. The Customer is obliged to follow XANDAR’s procedures for returning products with defects or deficiencies, including obtaining the RMA-number before the return is completed.
Compensation and Limitations of Liability
Unless applicable mandatory laws otherwise provide, XANDAR shall have no liability for any defects, deficiencies or damage resulting from the Customer not following guidance documentation or other supplementary documentation provided by the manufacturer and/or XANDAR and enclosed with the products.
Unless applicable mandatory laws otherwise provide, XANDAR shall not be liable for any indirect, consequential or incidental damage resulting from the delivery of, or defects or deficiencies in, the product, data or goods, or for any loss caused thereof including but not limited to damage caused upon other products, unrealized profits, loss from business interruption, loss of income, loss of business information and/or data, personal data, reputation or any similar events, even if XANDAR has been made aware that such losses may arise. Under no circumstances will XANDAR’s liability include damage or indirect damage caused by the products that XANDAR, at the time of contract, could not reasonably foresee or take in to consideration.
The Customer’s right to compensation or deduction from the purchase price as a result of XANDAR’s liability, as per these terms and conditions of sale and delivery, is, in every circumstance, limited to the agreed net purchase price for the products. Should XANDAR by court order or decision be made responsible for compensation, the compensation shall be limited to the purchase price for the product in question, assuming that the applicable law allow for such a limitation.
You agree not to, and you will not permit others to:
a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit XANDAR Products, Dashboard, Application or make it available to any third party.
Modifications to Application
XANDAR reserves the right to modify, suspend or discontinue, temporarily or permanently, the Products, Dashboard, Application or any service to which it connects, with or without notice and without liability to you.
Returns – Cancellations
Products delivered according to an agreed batch and/or execution will only be accepted in return according to the foregoing agreement and on the conditions determined by XANDAR. The Customer is obliged to follow these provisions and the procedures established for this purpose. Products not returned according to the procedures will not be accepted. Incomplete returns are returned to the Customer unprocessed at the Customer’s own expense and risk. XANDAR reserves the right to, when crediting because of returns, to deduct a return fee equivalent of fifteen percent (15%) of the total invoice value. This provision does not apply to products returned because of actual defects or deficiencies.
For certain product groups, including products tailor-made to the Customer, the Customer may, on special terms and against payment of an agreed fee, cancel orders or postpone the time of delivery, as long as this has been agreed with XANDAR in writing. The Customer is obliged to follow XANDAR’s procedures for returning products, including obtaining the RMA-number before the return is completed. All returned products shall be wrapped in their original packaging and returned to XANDAR or any other address provided by XANDAR in writing. If the Customer cancels or reschedules agreed consulting services within ten (10) working days before the agreed time of delivery, the Customer will be charged with the potential loss of consultancy income and any costs incurred in connection with the preparation for delivery of the service.
Intellectual Property Rights
The Customer does not acquire ownership of copyright, patent rights or other intellectual property rights in any part of any sold or licensed product by virtue of these terms and conditions and acknowledges that any and all copyrights, patent rights, trademarks and other intellectual property rights subsisting in or used in connection with the products including any software, documentation and/or manuals relating thereto (the Products) are and shall remain the property of XANDAR or its licensor(s) and the Customer shall not during or after expiry or termination of its use of the Products in any way question or dispute the ownership thereof, perform any acts of reverse engineering, copying the Products in whole or in part or any other actions contrary.
The Customer agrees that the product will not be “reverse engineered” for the purpose of developing a copy like commercial product.
Term and Termination
This Agreement shall remain in effect until terminated by the Customer or XANDAR.
XANDAR may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice.
This Agreement will terminate immediately, without prior notice from XANDAR in the event that Customer fail to comply with any provision of this Agreement.
Upon termination of this Agreement, Customer shall cease all use of the Product, Dashboard, Application and delete all copies on mobile devices or on desktop.
If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
Amendments to this Agreement
XANDAR KARDIAN reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material we will provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
If you have any questions about this Agreement, please contact us.