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Terms and conditions

Unless otherwise expressly stated, these Terms shall apply to all deliveries by Napatech to Buyer, including hardware, software and/or services.

Buyer’s acceptance of any offer by Napatech is limited to these Terms only. Napatech’s acceptance of any offer by Buyer is expressly made conditional on Buyer’s assent to these conditions. Napatech objects to and rejects all additional or different terms and conditions unless expressly accepted by Napatech. Buyer’s issuance of an order or Buyer’s acceptance of products when delivered constitutes Buyer’s acceptance of and assent to Napatech’s applicable Order Acknowledgment, including these Terms in full and without addition or modification, as the Contract between us.

1. PRICES
1.1. The offer made by Napatech will remain in force for 30 days and include only the deliveries comprised by the offer.
1.2. All prices given in Napatech’s offer are current prices. Napatech reserves the right to adjust all prices, e.g. for cost price or currency fluctuations.
1.3. A dispatch fee of USD 200 is charged for deliveries worth less than USD 1,000.00.
1.4. When Napatech has sent a written order confirmation, the order to purchase is considered binding. Changes can only be effected with the consent of Napatech. If cancellation is accepted, a fee of 20% of the amount of the order is charged.

2. DELIVERY AND DISPATCH
2.1. The time of delivery is fixed by Napatech at its discretion.
2.2. Notwithstanding delivery is considered to have been effected ex works and the risk of the product sold has passed to the Buyer, Napatech will, on Buyer’s request, make arrangements for the dispatch of the products. In such case Napatech will decide whether the products will be sent together or as several consignments.
2.3. If the delivery is delayed in whole or in part, Napatech is not liable unless it can be proven that the delay is due to errors or negligence on the part of Napatech and if the Buyer can prove that he has suffered a documented loss. Damages cannot exceed more than 10% of the invoice value of the delayed delivery, exclusive of VAT and import levy. In case of delay, Napatech will never be liable for the Buyer’s direct or indirect losses, including loss of business or profit.

3. TRANSFER OF RISK
3.1. The risk of accidental loss of products is transferred to the Buyer at delivery. The delivery is FCA, cf. INCOTERMS (the 2010 edition).

4. DESCRIPTION OF PRODUCTS
4.1. All information on design, weight, dimensions, capacity, technical specifications, etc., given in catalogues, prospects, advertisements, illustrations and price lists is only binding to the extent expressly referred to in Napatech’s order confirmation.

5. PAYMENT
5.1. Napatech’s terms of payment are, unless otherwise stated, 30 days net from the date of invoice. If payment is not effected before the last date of payment, interest will be calculated on the sales price, at present in the amount of 2% for each month or fraction thereof following the date of payment. Any credit given is subject to credit approval at Napatech’s credit insurance company.
5.2. Even if the Buyer may have a counterclaim against Napatech, such claim cannot be set off against the sales price unless the claim is acknowledged by Napatech.
5.3. The title to any products delivered by Napatech to the Buyer shall remain with Napatech until the products are paid in full.

6. APPLICABILITY OF THE PRODUCTS
6.1. Only upon written approval from management of Napatech may Napatech’s products be applied as critical components of the Buyer’s equipment, such as, but not limited to, application in resuscitation equipment, aero planes, nuclear power stations and within the space industry. Furthermore, reference is made to the note in the manual pertaining to each product.

7. BENCHMARKS AND PERFORMANCE
7.1. Any performance tests and ratings are measured using specific computer systems and/or components and reflect the approximate performance of Napatech products as measured by those tests. Any difference in system hardware or software design or configuration may affect actual performance. Buyers should consult other sources of information to evaluate the performance of systems or components they are considering purchasing.

8. LIABILITY FOR DEFECTS
8.1. The Buyer shall examine and test each delivery thoroughly immediately upon receipt.
8.2. Napatech does not undertake any liability (except for platform products defined functionality as per datasheet) for fitness for a particular purpose contemplated by the Buyer.
8.3. If the Buyer intends to invoke any defects of the products supplied, he must immediately notify Napatech in writing. The Buyer’s failure to notify Napatech immediately of defects which the Buyer has or should have discovered shall exempt Napatech from liability.
8.4. In case of complaint, the Buyer is not entitled to dispose of the products or return them to Napatech without Napatech’s written approval thereof.
8.5. If the products or any part thereof should prove to be defective, Napatech is entitled to decide whether to remedy the defect or to replace the product by products of a satisfactory quality. If Napatech offers to remedy the defect or replace the product, the Buyer is not entitled to rescind the contract of sale or demand proportionate price reduction or damages because of the defect. Napatech is not liable for any delay caused by the remedy or replacement.
8.6. Napatech is not liable for any defects due to unusual wear and tear, damage, insufficient maintenance, incorrect installation or repairs carried out by another person than Napatech.
8.7. In case of remedying of defects, etc., shipment of products delivered is effected at the Buyer’s account.
8.8. Napatech is not liable for any defects of the products delivered, except as following from clause 8.5 above.
8.9. Products accepted by Napatech as return goods for other reasons that those listed above, the products being unused/undamaged, will be credited at the sales price less than 20%.

9. LIMITATION OF LIABILITY
9.1. In no event shall Napatech be liable for personal injury, or any incidental, special, indirect or consequential damages whatsoever, including, without limitation, damages for loss of profits, corruption or loss of data, failure to transmit or receive any data or information, business interruption or any other commercial damages or losses, arising out of or related to the use or inability to use the Napatech software or services or any third-party software or applications in conjunction with the Napatech software or services, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if Napatech has been advised of the possibility of such damages.
9.2. Napatech’s total cumulative liability to Buyer, including for direct damages and any indemnification obligation under the Contract (and whether the breach arises because of breach of contract, negligence, or for any other reason), will not exceed the sum paid or payable to Napatech by Buyer under the contract for products that are the subject of and directly affected by such claim.

10. PRODUCT LIABILITY
10.1. To the extent it may legally be agreed, Napatech shall not be liable for personal injury or property damage which is caused by the products to the Buyer, the Buyer’s contractors, or any third party, unless it is demonstrated that the damage is due to Napatech’s gross negligence.
10.2. Napatech is not liable for any loss of profit, loss of earnings or any other indirect loss.
10.3. To the extent that Napatech should be held liable by a third party in excess of the liability
of this clause Buyer shall hold Napatech harmless from such liability.
10.4. If any third party should claim damages from one of the parties to this contract, this contractual party must notify the other contractual party immediately.
10.5. Napatech and the Buyer are reciprocally obliged to accept litigation at a court of law hearing a case on damages instituted against one of them because of a defect claimed to have been caused by the products delivered. The mutual relationship between Napatech and the Buyer shall be settled by arbitration pursuant to clause 15.
10.6. Napatech has no liability for the use, fit and function of Buyer’s solution towards end users.
The Buyer is solely responsible for configuration issues and use of accessories with the products.

11. LIMITED WARRANTY
11.1. Napatech warrants that, on delivery, hardware products will be free from material defects in material and workmanship and will materially conform to Napatech’s published specifications for one year from the date of shipment to Buyer by Napatech. This warranty will apply unless Napatech provides a different warranty for the specific hardware product according to order acknowledgement or on the product packaging.
11.2. Software provided by Napatech is subject to the terms of the applicable Software License Agreement. Any non-Napatech branded or third-party products supplied to the Buyer by Napatech are supplied “AS IS” without warranties of any kind.

12. FORCE MAJEURE
12.1. Napatech will be exempt from liability in the following circumstances, when they occur after the conclusion of the contract and hinder its fulfillment: industrial dispute and other events which the parties do not control, such as fire, war, mobilization, requisition, seizure, currency restrictions, rising, lack of means of transport, general scarcity of goods, rejection of work, explosion, strike, lockout, acts of God, and long-term failure of energy supply, as well as delayed deliveries from sub-suppliers.
12.2. The party, which intends to rely on any of the circumstances listed in clause 12.1, must notify the other party in writing of its commencement and termination.
12.3. Either party is entitled to terminate the contract by written notice to the other party when the contract cannot be performed within a period of 60 days because of any of the circumstances listed in clause 12.1.

13. INFRINGEMENT OF EXCLUSIVE RIGHT, ETC.
13.1. Napatech’s products are covered and protected by the legislation on intellectual property rights in force at any time and by international treaties. Any copying, processing, reverse engineering, etc., is prohibited. Furthermore, any specification, specimen, computer code,
list of customers or potential customers or other business information is the property of Napatech, and the Buyer is not entitled to pass on any information thereon unless otherwise agreed with Napatech in writing. The Buyer is, however, entitled to pass on Napatech’s non-confidential manuals to the Buyer’s customers.
13.2. Napatech shall indemnify the Buyer for all claims or costs in connection with any lawsuit against the Buyer for violation of patent or trademark rights in the products.
13.3. The Buyer shall notify Napatech immediately if any such claim is made and authorize Napatech to conduct litigation or settle a dispute on alleged infringements at its own account.
13.4. Napatech is entitled, at its own choice and account, to obtain the right to continued use of equipment on behalf of the Buyer or to replace/modify the equipment so as to terminate the infringement. If such measures are not possible in the opinion of Napatech, the Buyer undertakes to return the equipment without undue delay upon written request from Napatech. In such situation, the Buyer’s account will be credited with the price of the equipment returned less depreciation. Such depreciation is made at equal installments each year of the normal useful life/period of service as determined by Napatech.
13.5. Napatech’s liability for infringement of intellectual property rights is restricted to the situations referred to in the clauses 13.1, 13.2, 13.3 and 13.4 above. No further claims
for damages can be raised against Napatech.

14. INTERNATIONAL RELATIONS
14.1. The Buyer is responsible in every respect and at his own account for obtaining and maintaining all export and import licenses necessary for the Buyer with relation to the Buyer’s acquisition and resale of Napatech’s products.
14.2. The Buyer is responsible in every respect and at its own account for ensuring that
Napatech’s products comply with the national legislation of the country or countries in which the Buyer markets Napatech’s products.
14.3. The Buyer shall indemnify Napatech for any claim, loss or fine related to the buyer’s non-compliance with clauses 14.1 and 14.2.

15. ARBITRATION
15.1. Any dispute arising out of or in connection with the delivery of products shall be settled finally and conclusively and with binding effect in accordance with the “Rules of Procedure of the Danish Institute of Arbitration (Copenhagen Arbitration)” Each party shall appoint one arbitrator, while the Chairman of the arbitration will be appointed by the Institute. If a party has not appointed an arbitrator within 30 days of having submitted or received notice of the request for arbitration, such arbitrator will also be appointed by the Institute in conformity with said Rules. The place of arbitration shall be Copenhagen. Danish law shall apply except for the Danish conflict of laws rules.

Read this Software License Agreement (“License”) carefully before using the software and any associated materials (collectively: “the Napatech Software”). By installing, copying, accessing or otherwise using the Napatech Software, you are agreeing to be bound by the terms of this License. If you do not agree to the terms of this License, do not install, copy, access or otherwise use the Napatech Software.

1. GRANT OF LICENSE
1.1 Subject to the terms and conditions of this License, you are granted a limited,
non-exclusive, non-assignable, copyright license to install, use, test, reproduce and distribute the Napatech Software.

2. RESTRICTIONS IN THE LICENSE
2.1 Except as and only to the extent prohibited by applicable law, the following restrictions shall apply:

2.1.1 You may distribute the Napatech Software only to your customers pursuant to a written license agreement that, at a minimum, shall safeguard Napatech’s rights to the Napatech Software to the same extent as this License.

2.1.2 You may not modify the Napatech Software, nor may you reverse engineer, decompile, disassemble or attempt to derive the source code of the Napatech Software or any part thereof. You may not distribute, sublicense or transfer the source code to the Napatech Software or any derivatives thereof to any third party without the express written consent of Napatech. You may not permit, authorize, license to or sublicense any third party to view or use the source code to the Napatech Software or modify the Napatech Software.

2.1.3 Napatech retains all ownership of the Napatech Software (including, but not limited to, source code and object code) itself and reserve all rights not expressly granted to you. Specifically, Napatech grants no right to you under Napatech’s patents, copyrights, trademarks, or other intellectual property rights not expressly stated herein.

2.1.4 If you purchase Napatech Software and use such Software on or with hardware that does not meet the technical specifications set forth in the applicable Software Product Documentation, then (i) Napatech will not warrant the performance of or results obtained by using the Software Product and Napatech disclaims all liability with respect to the foregoing, (ii) you assume the risk as to the results and performance of the Software Product and (iii) you hereby acknowledge and agree that your rights and Napatech’s obligations with respect to maintenance and warranty are waived.

3. THIRD-PARTY SOFTWARE
3.1 Napatech may include software supplied by third-parties in the Napatech Software. Napatech is providing such third-party software to you by permission of the respective licensors and/or copyright holders on the license terms provided by such parties. Such third-party license terms can be found in documentation accompanying the Napatech Software (such as a read-me file). You must fully agree and comply with these license terms or must not use the software. The third-party license terms apply only to the respective software to which the license pertains.

4. UPDATES, FIXES AND PATCHES
4.1 If you receive an update, fix, or patch to the Napatech Software, you accept any additional or different terms that are applicable to such update, fix, or patch that are specified in any accompanying document with information or additional or different terms as to the Napatech Software. If no additional or different terms are provided, then the update, fix, or patch is subject solely to this License. If the Napatech Software is replaced by an update to fix a material problem and you are notified hereof, you agree to promptly discontinue use of the replaced Napatech Software. Napatech is not obligated to support, fix or update the Napatech Software.

5. EXCLUSION OF WARRANTY
5.1 To the extent permitted by law, the Napatech Software is provided “as is” without any warranties, express or implied, and Napatech disclaims all implied warranties including any implied warranty of title, merchantability, noninfringement, or of fitness for a particular purpose. Napatech does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links, or other items contained within the Napatech Software. No agent of Napatech is authorized to make any warranties or to modify this exclusion of warranty.

6. UNAUTHORIZED USE
6.1 The Napatech Software is designed, intended, and authorized for use only in its specified operating environment and in compliance with its specifications. The Napatech Software specifications and specified operating environment information can be found in documentation accompanying the Napatech Software (such as a read-me file) or other information published by Napatech (such as an announcement letter). In particular, the Napatech Software is not designed, intended, or authorized for use in any type of system or application in which the failure of the Napatech Software could create a situation where personal injury or death may occur (e.g. medical systems, life sustaining or life-saving systems). If you make such unauthorized use of the Napatech Software, you shall indemnify and hold harmless Napatech and its officers, subsidiaries and affiliates against all claims, costs, damages, and expenses, and reasonable attorney fees arising out of any claim, including any claim of product liability, associated with the unauthorized use.

7. AUDIT
An Auditor, selected by Napatech and reasonably acceptable to you, may, upon reasonable notice and during normal business hours, but not more often than once each year, inspect your records and deployment in order to confirm that use of the licensed software complies with this license agreement and the applicable license instrument.

8. LIMITATION OF LIABILITY
8.1 In no event shall Napatech be liable for personal injury, or any incidental, special, indirect or consequential damages whatsoever, including, without limitation, damages for loss of profits, corruption or loss of data, failure to transmit or receive any data or information, business interruption or any other commercial damages or losses, arising out of or related to your use or inability to use the Napatech Software or services or any third party software or applications in conjunction with the Napatech Software or services, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if Napatech has been advised of the possibility of such damages.
8.2 Napatech’s total cumulative liability to buyer, including for direct damages and any indemnification obligation under the Contract (and whether the breach arises because of breach of contract, negligence, or for any other reason), will not exceed the sum paid or payable to Napatech by buyer under the Contract for Products that are the subject of and directly affected by such claim.
8.3 Neither you nor Napatech is responsible for failure to fulfill any obligations due to causes beyond its control.

9. APPLICABLE LAWS
9.1 This License will be governed by and construed in accordance with the laws of State of California (United States of America), excluding its conflict of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

10. CONFIDENTIALITY
10.1 By virtue of this agreement, the parties may have access to information that is confidential to one another. Confidential information shall be limited to the terms and pricing under this agreement, and all information clearly identified as confidential. A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.

11. TERMINATION
11.1 Napatech may terminate this License at any time if you violate its terms. Upon termination, you will immediately fully delete and destroy the Napatech Software or return all copies of the Napatech Software to Napatech.

12. GENERAL
12.1 Nothing in this License affects any statutory rights of consumers that cannot be waived or limited by contract.
12.2 If any provision of this License is held to be invalid or unenforceable, the remaining provisions of this License remain in full force and effect.
12.3 You authorize Napatech and its subsidiaries (and their successors and assigns and contractors) to store and use your business contact information wherever they do business, in connection with Napatech products and services, or in furtherance of Napatech’s business relationship with you.

December 12 2018 Napatech A/S.

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