GENERAL TERMS AND CONDITIONS
for Xena Networks ApS (and affiliates, collectively “Xena Networks”) regarding the delivery of goods and services.
If, in connection with the sale of certain Xena Networks products and/or services provided to you (“Buyer”), a written sales acknowledgement that references these General Terms and Conditions (an “Acknowledgement”), all references herein to the “quotation” shall be interpreted as references to that Acknowledgement for purposes of that sale. If Buyer and Xena Networks have signed a written agreement regarding the sale of the products and services specified in the quotation (collectively, the “Products”), that agreement shall govern the sale of the Products and these General Terms and Conditions shall not apply. In the absence of such an agreement, these General Terms and Conditions shall govern the sale of the Products.
1. ACCEPTANCE – The quotation provided by Xena Networks for sale of any Xena Networks Product, these General Terms and Conditions, and accompanying warranty of any Products (the “Warranty”) are collectively referred to herein as the “Agreement”. The Agreement shall prevail over terms and conditions contained in any purchase order, confirmation or other writing submitted by Buyer to Xena Networks. “Acceptance” by Buyer shall occur immediately upon the receipt of any Xena Networks Product. Acceptance by Buyer is limited to the terms of this Agreement. This offer may be revoked by Xena Networks at any time prior to Acceptance by Buyer.
2. PRICES – Prices for the Products are as set forth in the quotation. All prices are exclusive of all federal, state, municipal or other government excise, sales, use, occupational or like taxes or duties, tariffs, fees or charges (“Tax(es)”) now in force or enacted in the future. All Taxes shall be payable by Buyer, unless Buyer presents Xena Networks with a proper certificate of exemption from such Tax. Should Xena Networks be required to pay any such Tax at the time of sale or thereafter, Buyer shall promptly reimburse Xena Networks therefore. Unless otherwise stated, all amounts set forth in the Agreement, and on Xena Networks corresponding invoices, are in U.S. currency.
3. PAYMENT; SECURITY – Buyer shall pay: one hundred percent (100%) of the purchase price of each Product, due and payable within 30 days from invoice date. All payments to Xena Networks shall be in U.S. dollars, free of any restrictions or withholdings. Buyer shall have no right to withhold any amount due Xena Networks under the Agreement because of a claim Buyer may have against Xena Networks. When, in Xena Networks’ sole opinion, Buyer’s financial condition or previous payment record so warrants, or the available financial information to Xena Networks regarding Buyer is limited, Xena Networks reserves the right to change the credit terms at any time. Xena Networks reserves the right to require payment in advance by wire transfer, confirmed irrevocable letter of credit or such other means as are acceptable to Xena Networks. Buyer hereby grants and Xena Networks reserves a purchase money security interest in each Product purchased hereunder, and in any proceeds thereof, for all Buyer’s obligations hereunder until the total purchase price is paid. Xena Networks reserves all rights granted to a secured creditor under the Uniform Commercial Code. Upon request by Xena Networks, Buyer shall sign any document required to perfect such security interest. Late payments shall bear interest at the lower of either the maximum legal rate of interest or one and one half percent (1-1/2%) per month on the amounts outstanding.
4. DELIVERY – Shipments of Products are subject to Xena Networks availability. Xena Networks shall use reasonable efforts to meet any scheduled delivery date(s), but will not be liable for failure to meet such dates and reserves the right to make partial deliveries. If Buyer is unable to receive Products at time of delivery, Xena Networks at its sole option may deliver such Products to storage. All costs incurred by Xena Networks for transportation, storage and insurance of such Products shall be borne by Buyer. Xena Networks shall invoice such partial deliveries separately and Buyer shall pay such invoices when due (within 30 days from invoice date), without regard to later deliveries. Buyer will provide Xena Networks with shipping instructions on its order and if it fails to do so, Xena Networks will determine the carrier and means of transportation and will ship the Product according to section 6 below.
5. RESCHEDULING; CANCELLATION – No rescheduling is permitted for deliveries due within 30 days. For deliveries due 31 days or more, Buyer may reschedule delivery with prior written notice to Xena Networks. Any such reschedule request must be sent to Xena Networks no later than 30 days prior to the scheduled delivery date. No cancellation is permitted for deliveries due within 90 days. For deliveries due 91 days or more, Buyer may cancel delivery with prior written notice to Xena Networks. Any such reschedule request must be sent to Xena Networks no later than 90 days prior to the scheduled delivery date. All Products specifically manufactured for Buyer or not normally stocked by Xena Networks are non-cancelable and non-returnable.
6. TITLE; TRANSPORTATION; RISK OF LOSS – The Products shall be delivered Ex Works from Xena Networks designated facility (Incoterms 2020). Title and risk of loss of the Products shall then pass to Buyer. Products shall be packed for shipment and storage in accordance with standard commercial practices.
7. EXPORT COMPLIANCE – Buyer is responsible for all export compliance requirements. Buyer certifies that it will not export or re-export the Products or any technical data furnished by or on behalf of Xena Networks hereunder unless it complies fully with all applicable federal, state and local laws, regulations and ordinances.
8. DEFAULT – Buyer’s failure to perform its obligations under this Agreement, including, but not limited to, failure to make any payment when due for any Product, or the filing of any voluntary or involuntary petition under the Bankruptcy Code by or against Buyer, insolvency of Buyer, assignment by Buyer for the benefit of creditors, or liquidation of Buyer’s business, shall constitute a default under this Agreement and shall afford Xena Networks all remedies of a secured party under the Danish Commercial Code. In the event of default, Xena Networks may, with or without demand or notice to Buyer, declare the entire unpaid amounts under this Agreement immediately due and payable, enter the premises where any Products are located and remove them and sell any or all Products as permitted under applicable law. In addition to any other remedies at law or in equity which Xena Networks may have in the event of default, Xena Networks may refuse: (a) to provide maintenance, service, or parts on any Products under any applicable warranty, service or maintenance agreements relating to any Products then in effect between the parties, or (b) to make any further shipments of Products under any agreement between the parties.
9. LIMITATION OF REMEDIES AND LIABILITIES – THE REMEDIES PROVIDED HEREIN ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES. IN NO EVENT SHALL XENA NETWORKS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, PRODUCTION OR USE, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OF SALE OR THE USE OR PERFORMANCE OF ANY PRODUCTS, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL THEORY, EVEN IF XENA NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL EXTENT OF XENA NETWORKS’ LIABILITY FOR DAMAGES OF ANY NATURE TO BUYER, REGARDLESS OF FORM OF ACTION, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCT ON WHICH LIABILITY IS BASED.
10. SPECIAL APPLICATIONS – Buyer agrees that Xena Networks has no control over Buyers’ use or the specific applications in which customer will use the Products. Xena Networks Products were not designed and not warranted to be suitable for use in applications involving the risk of personal injury, death, destruction of property, medical life support devices, or similar applications (“Special Applications”). BUYER ACKNOWLEDGES THAT THE BUYER IS SOLELY RESPONSIBLE FOR ANY XENA NETWORKS PRODUCT USED IN SPECIAL APPLICATIONS AND SHALL BE SOLELY LIABLE FOR ANY DAMAGES RESULTING FROM SUCH USE. NEITHER XENA NETWORKS NOR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS SHALL BE LIABLE FOR ANY DAMAGES RESULTING FROM OR IN CONNECTION WITH THE USE OF THE XENA NETWORKS PRODUCT IN ANY SPECIAL APPLICATION.
11. CONFIDENTIAL INFORMATION – Any documentation or data supplied by Xena Networks to Buyer and marked “confidential” are proprietary and confidential to Xena Networks. Xena Networks retains for itself all proprietary rights to all designs, engineering details, and other data pertaining to any Product sold. Buyer agrees to maintain the confidentiality of any proprietary documentation, data, or price quotes (whether marked “confidential” or not) supplied to it and not to disclose or use such documentation, data, or price quotes in any manner inconsistent with the purpose for which it was disclosed. Buyer hereby grants Xena Networks a nonexclusive, limited license to use, copy, modify or otherwise utilize any materials or intellectual property provided by Buyer to Xena Networks for purposes of fulfilling Xena Network obligations herein.
12. WARRANTY AND SUPPORT – Xena Networks provides certain warranty and support services to the customer for each Product sold. See details at https://xenanetworks.com/business-terms/.
13. MISCELLANEOUS – (a) CONTROLLING LAW – This Agreement shall be governed by Danish law without regard to conflicts of laws provisions. The parties hereby agree that any dispute relating to the Products shall be subject to the exclusive jurisdiction of the federal courts located in Denmark. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. (b) ASSIGNMENT: This Agreement may not be assigned by operation of law or otherwise by Buyer without Xena Networks’ prior written consent and any assignment in violation of this section shall be void. (c) SUBSTITUTIONS; MODIFICATIONS: Xena Networks shall have the right to make substitutions of Products, provided that such substitutions do not materially detract from the overall Product performance. Xena Networks reserves the right at any time to make changes to Products without liability or obligation to implement such change to any Product manufactured prior thereto. Buyer shall be liable for costs of Buyer-requested changes made by Xena Networks. (d) COMPLIANCE WITH LAWS: Unless otherwise agreed in writing, Buyer assumes all responsibility for obtaining any required export authorization. Buyer shall not export or re-export technical data or Products in violation of Danish Export Administration Regulations or similar laws or any applicable export control laws or regulations. (e) SEVERABILITY: Any provision of this Agreement held invalid shall be deemed severable from all other provisions of the Agreement. (f) WAIVER: No waiver of any provision of this contract shall be effective unless made in writing. Xena Networks failure to enforce any term of this Agreement shall not be deemed a waiver of future enforcement of that or any other term. Xena Networks acceptance of any payment after the due date or Xena Networks election to continue making shipments after default shall not constitute a waiver of any default by Buyer or effect Xena Networks legal remedies for any such default. (g) RETURN OF PRODUCT: Xena Networks may, at its sole option and convenience, permit Buyer to return conforming Product subject to a restocking fee. Products may not be returned without first obtaining Xena Networks’ written permission, in the form of a Return Material Authorization (RMA) number. Buyer shall pay all shipping, transportation, rigging, licensing, importation and insurance costs for all returned products. (h) RESALE: Buyer shall not re-sell, distribute or otherwise dispose of Products on a standalone basis to any third party without first obtaining Xena Networks’ prior written consent. (i) FORCE MAJEURE: Xena Networks shall not be liable for any delay in performance or inability to perform due to any cause beyond Xena Networks’ control including, but not limited to, acts of nature, acts of government, acts of God, omissions of Buyer, labor disputes, delays in transportation, delays in delivery or inability to deliver by Xena Networks’ suppliers or manufacturers, fire, flood, epidemics, riots, or war. Intervention of any such cause shall give Xena Networks the right, without liability to Buyer, to terminate the sale or, upon removal of the cause, to resume delivery. (j) ENTIRE AGREEMENT: This Agreement supersedes all prior and contemporaneous agreements and understandings, oral or written, between Xena Networks, or its agents and Buyer relating to the subject matter hereunder and no modifications of this Agreement shall be binding on either party unless it is in writing and signed by both parties. (k) STATUTE OF LIMITATIONS: The time period for Buyer to bring any cause of action or claim for damages or injunctive relief is one year after Buyer’s Acceptance. (l) NO REVERSE ENGINEERING: Buyer shall not (and shall not allow any third party to) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Product by any means whatsoever.
Last updated: July 2020
End User License Agreement
This End User License Agreement (EULA) is between the final customer (Customer) and Xena Networks ApS (Xena) and governs Customer’s use of the Xena Software.
Delivery and Acceptance
The Xena Software is deemed to be delivered and accepted by Customer on the earlier of: a) the date it is made available or b) the date that Xena ships the tangible media containing the Xena Software (Acceptance Date). By downloading, installing, copying, accessing or using the Xena Software, Customer agrees to be bound by the terms of this EULA from the Acceptance Date.
Xena gives Customer a time-limited, non-exclusive, non-transferable license to use this version of the Xena Software and related documentation for Customer’s internal use (License). The time limitation is defined by the purchased Xena product.
Subsequent versions of the Xena Software are NOT covered by this EULA.
· for Xena application software, use the Xena Software on any computer in Customer’s organization or on any virtual machine controlled by the Customer.
· for Xena embedded software, use the Xena Software with the Xena Hardware supplied by Xena.
· copy the Xena Software for archival purposes, provided any copy contains all of the original Xena Software proprietary notices or labels.
Customer may not:
· modify, translate, reverse engineer, decompile, disassemble the Xena Software (except to the extent applicable laws specifically prohibit such restriction).
· create derivative works based on the Xena Software.
· copy the Xena Software (except as specified above).
· rent, lease, or otherwise transfer rights to the Xena Software.
· remove any proprietary notices or labels on the Xena Software.
The License will terminate automatically if Customer fails to comply with the limitations described above. On termination, Customer must destroy all copies of the Xena Software and related documentation.
Disclaimer Of Warranty
The Xena Software is provided on an AS IS basis, without warranty of any kind, including without limitation the warranties of merchantability, fitness for a particular purpose, and non-infringement.
The entire risk as to the quality and performance of the Xena Software is borne by Customer.
Should the Xena Software prove defective, Customer and not Xena assumes the entire cost of any service and/or repair.
XENA IS NOT RESPONSIBLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES.
Intellectual Property Rights
Title, ownership rights, and intellectual property rights in and to the Xena Software shall remain in Xena. The Xena Software is protected by international copyright treaties.
Consent to Use of Data
Customer agrees that Xena may collect and use technical data and related information, including but not limited to technical information about Customer’s product and use. This information is gathered periodically to facilitate the provision of software updates, product support, and other services to Customer (if any) relating to the Xena Software. Xena may use this information, as long as it is in a form that does not contain any personally identifiable information, to improve its products, services or technologies provided to Customer.
Please direct any questions regarding this EULA to:
Xena Networks ApS
Lottenborgvej 26 2A
2800 Lyngby Denmark
Email: [email protected]
Copyright © Xena Networks 2020. All rights reserved.
Last updated: July 2020
Warranty Value Pack
Xena Networks ApS (Xena) Warranty Value Pack warrants Xena hardware and software (Products) purchased by customer as follows:
1. Hardware Warranty
· What Is Covered: Any material defects which are traceable to original material and workmanship of Xena chassis and test module hardware (Hardware).
· For How Long: 36 months from the original ship date of the Hardware.
· What We Will Do: Xena will repair or replace defective Hardware, in accordance with this warranty.
· What Customer Must Do: For replacement or repair of defective Hardware during the 36-Month warranty period, customer is required to obtain a Return of Material Authorization (RMA) number by sending an e-mail to [email protected], containing the following information: customer name, address, and telephone number, model number of Hardware; serial numbers of Hardware (chassis serial number is located on rear panel, test module serial numbers are located on either the top or bottom edge of the PCB), and a detailed problem description.
· Hardware Warranty: Repairs or replacement may require return of the Hardware in accordance with the following instructions: All returned Hardware should preferably be shipped in their original packaging. Units packaged incorrectly may be damaged in shipping, which will invalidate this warranty with respect to such units, and may cause customer to incur a corresponding repair or replacement charge. Xena will make commercially reasonable efforts to repair or replace and return the Hardware, with all shipping paid by Xena, within fifteen (15) business days after receipt. If returned Hardware is determined by Xena not to be defective, customer shall be responsible, at Xena’s discretion, for all related costs incurred by Xena, including shipping.
2. Software Warranty
· What is Covered: All Xena software (Software) is warranted to execute and install properly from the Software media provided.
· For How Long: 36-Months from the original ship date of the Software.
· What We Will Do: Xena will repair or replace defective Software media, in accordance with this warranty.
· What Customer Must Do: For replacement of defective Software media during the 36-Month warranty period, send an e-mail to [email protected], containing the following information: customer name, address, telephone number, and a problem description.
3. ACCESS TO SOFTWARE
During the warranty period, the customer has free access to download and use the latest Software for their Xena Product.
4. Warranty Exclusion
The Warranty does not extend to any Products that have been subject to misuse, neglect, abuse, improper storage, accident, alteration, or that have not been properly maintained, or have been serviced or modified by any third party.
Extended Warranty Value Pack
Xena offers an extended warranty on hardware and software beyond the Warranty Value Pack to ensure continued warranty privileges at Customer’s option. This Xena Extended Warranty Value Pack is available to Customers for additional one-year terms and renewable annually (Extended Warranty Value Pack).
Xena will extend the Warranty Value Pack beyond the initial warranty period, for a fee. Under this extended warranty, Xena will repair or replace defective Xena Hardware and provide a Software warranty, under the same terms and conditions as during the initial Warranty Value Pack. Extended warranty coverage can be purchased for individual components of Xena Product. Please contact your Xena sales representative for pricing.
Last updated: July 2020