Terms & Conditions

OPAL KELLY TERMS AND CONDITIONS OF SALE – DIRECT SALES

These terms and conditions (“Terms and Conditions”) set out the terms on which Opal Kelly Incorporated, an Illinois corporation (“Opal Kelly”), offers its products (“Products”) to purchasers (“Purchasers”). By submitting an order to Opal Kelly for the Products (an “Order”), each Purchaser agrees to comply with these Terms and Conditions. Opal Kelly and Purchaser may be referred to in these Terms and Conditions as a “Party” or, collectively, as the “Parties.”

1. Scope. These Terms and Conditions govern all direct sales of Products to Purchasers and are incorporated into all Orders submitted by Purchaser and accepted by Opal Kelly for the manufacture, sale, and supply of the Products. All Products that include the FrontPanel SDK are subject to the FrontPanel License Agreement, which is hereby incorporated into these Terms and Conditions.
2. Definitions.
   1. “Delivery” and “Delivered” have the meaning set forth in Section 5.1
   2. “FrontPanel License Agreement” means the FrontPanel License Agreement provided by Opal Kelly to Purchaser with the shipment of such Product. A copy of the FrontPanel License Agreement can be found at https://opalkelly.com/about-us/frontpanel-license/.
   3. “Opal Kelly” has the meaning set forth in the Preamble.
   4. “Order” has the meaning set forth in the Preamble.
   5. “Products” has the meaning set forth in the Preamble.
   6. “Purchase Order” has the meaning set forth in Section 3.3.
   7. “Purchaser” has the meaning set forth in the Preamble.
   8. “Pricing Schedule” has the meaning set forth in Section 4.1.
   9. “Return” has the meaning set forth in Section 5.2.
   10. “Website” means www.opalkelly.com.
3. Orders; Purchase and Sale of the Products.
   1. Purchase and Sale of Products. Opal Kelly will sell and deliver, and the Purchaser will purchase, the Products in accordance with these Terms and Conditions. Opal Kelly shall use commercially reasonable efforts to ship Orders within one (1) to two (2) business days of their receipt and acceptance by Opal Kelly. All amounts owed pursuant to an Order are due and payable upon Opal Kelly’s acceptance of such Order.
   2. Orders. When submitting an Order to Opal Kelly, Purchaser shall provide Opal Kelly with the following information: (i) the particular Products to be purchased; (ii) the quantity of such Products; and (iii) the Purchaser’s shipping address. Opal Kelly reserves the right to accept or refuse Orders and to allocate its production and/or inventory in any manner as it may determine in its sole discretion. Purchaser will be responsible for ensuring the accuracy of its Orders and providing Opal Kelly with information necessary to enable Opal Kelly to fulfill the Order. All delivery schedules provided to Purchaser in connection with an Order are estimates only.
   3. Purchase Orders. For certain Orders, Opal Kelly may allow, in its sole subjective discretion, Orders from Purchasers in the form of a separate purchase order (a “Purchase Order”). Opal Kelly’s acceptance of a Purchase Order from a Purchaser is contingent upon a satisfactory credit check of Purchaser, in Opal Kelly’s sole subjective discretion. These Terms and Conditions are incorporated into all Purchase Orders. Opal Kelly expressly rejects any terms that govern a Purchase Order other than these Terms and Conditions unless such terms are specifically negotiated by the Parties and expressly accepted in writing by Opal Kelly. All amounts owed pursuant to a Purchase Order are due and payable upon Opal Kelly’s acceptance of such Purchase Order.
   4. Change Orders. Changes to Orders or Purchase Orders shall not be binding until confirmed by Opal Kelly and provided that such changes to Orders comply with these Terms and Conditions.
   5. Certificate of Compliance. Opal Kelly does not provide a certificate of compliance with any off-the-shelf Product. Each Product does include a certificate of test that indicates successful adherence to Opal Kelly’s test protocol.
   6. Firmware Updates. With the exception of Products within the warranty period set forth in Section 6 below, all firmware updates are provided as a courtesy and may or may not be provided free of charge. Firmware updates are applied at Purchaser’s own risk and may, in rare cases, cause the Product not to boot. Opal Kelly charges twenty-five dollars ($25.00) plus any applicable shipping fees to reprogram a device that fails to boot as a result of a firmware update.
4. Purchase Price; Payment Terms.
   1. Purchase Price; Payment Terms. Purchaser shall pay the purchase price for the Products as set forth on the Website or a separately negotiated pricing schedule (“Pricing Schedule”), as applicable. The Pricing Schedule does not constitute a binding offer or agreement until an Order has been accepted by Opal Kelly.
   2. Sales Tax. Opal Kelly collects sales tax for sales to California only. In all jurisdictions, each Purchaser shall be solely responsible for all sales, use, and any other applicable taxes on orders. If your organization is exempt, please contact [email protected] before you place your order. We charge fifty dollars ($50) or ten percent (10%) of the sales tax (whichever is greater) to refund sales tax after payment has processed.
5. Delivery; Risk of Loss.
   1. Delivery. Products shall be delivered FCA origin (“Delivery” or “Delivered”) (as the term “FCA” is defined by the INCOTERMS).
   2. Returns. All Products purchased from Opal Kelly are fully refundable within the first thirty (30) days after purchase as long as complete packaging is included and the Product is in its original condition. Contact us at [email protected] for return information prior to returning any merchandise. Opal Kelly will not refund or reimburse shipping costs. A fifteen percent (15%) restocking fee will apply. Notwithstanding the foregoing, any Product with documentation that states that such Product is non-cancelable and/or non-refundable is not subject to this Section 5.2 and is not refundable nor creditable for any reason whatsoever.
   3. Reporting Timeline. Customers are required to inspect their orders upon receipt and notify Opal Kelly of any issues, such as missing items, damages, or incorrect products, within 14 days of delivery. Claims made after this period may not be eligible for resolution.
   4. Risk of Loss. Title to, and risk of loss for, all Products sold to Purchaser by Opal Kelly pursuant to these Terms and Conditions shall pass to Purchaser upon such Delivery.
   5. Exports. All Products sold for export or to foreign nationals are subject to the following destination control statement: “These commodities, technology or software are controlled by the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.”
6. Limited Warranty. Opal Kelly warrants that the Products will be free from material defects for up to thirty (30) days after delivery under normal use within specifications as provided by Opal Kelly and its suppliers. Because Opal Kelly’s Products are used in conjunction with customer designs, Opal Kelly must assess each situation on a case-by-case basis. This warranty shall only apply to defects found to be strictly with the Product during normal use and within specification of the components on-board prior the expiration of the thirty (30) day use period. In the event that any Product has a material defect covered within the scope of this Section 6, Opal Kelly shall repair or replace (at Opal Kelly’s option) the Product if returned to Opal Kelly in its original condition. Prior to returning a Product to Opal Kelly pursuant to this Section 6, Purchaser’s must contact Opal Kelly at [email protected] to coordinate such return. Purchaser shall pay the shipping expenses to send the affected Product to Opal Kelly, and Opal Kelly will pay shipping expenses to return the Product to the Purchaser. If Opal Kelly concludes, after examining and testing returned Product, that it is not covered by the warranty in this Section 6, Opal Kelly will notify Customer and return the Product at Customer’s expense. Opal Kelly reserves the right to charge a fee for examining and testing Product not covered by this warranty. Opal Kelly will not refund or reimburse shipping costs.EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND AND OPAL KELLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, WRITTEN OR ORAL, WITH RESPECT TO THE PRODUCTS AND SERVICES AND THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING.WITHOUT LIMITING THE FOREGOING IN ANY WAY: (A) OPAL KELLY EXPLICITLY DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS OR SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE; AND (B) OPAL KELLY DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
7. Force Majeure. Neither Party shall be responsible for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of nature or governments, interruptions of telecommunications, power or transportation; failure of contractors or suppliers; or inability to obtain necessary labor or materials (a “Force Majeure Event”); provided, however, Purchaser’s obligation to pay for the Products shall not be excused by a Force Majeure Event and Purchaser’s failure to make payments shall in all cases be considered a material breach of these Terms and Conditions for which Purchaser shall be liable. In the event of a Force Majeure Event, Opal Kelly reserves the right to cancel the applicable order without any liability to Purchaser.
8. Limitation of Damage. OPAL KELLY DISCLAIMS AND WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY, INCLUDING LOST PROFITS, LOSS OF USE, OR INJURY TO PURCHASER OR TO PURCHASER’S PROPERTY OR PRODUCTS ARISING FROM THE USE OF THE PRODUCTS.
9. Independent Contractor. The relationship established between Opal Kelly and Purchaser by these Terms and Conditions is that of vendor and vendee and nothing contained herein shall be deemed to establish or otherwise create a relationship of principal and agent. It is understood that Opal Kelly is an independent contractor and that neither Party shall be deemed an agent of the other Party for any purpose whatsoever. Neither Party, nor any of its agents or employees, shall have any right or authority to assume or create any obligation of any kind, whether express or implied, on behalf of the other Party.
10. General Provisions.
    1. Amendment and Modification. Any changes to these Terms and Conditions and/or an Order must specifically be agreed to in writing by an authorized representative of Opal Kelly before becoming binding on either Party. Opal Kelly reserves the right to make unilateral amendments or additions to these Terms and Conditions for any future orders, upon reasonable notice to Purchaser (the form of such notice to be in Opal Kelly’s sole subjective discretion). Purchaser will be subject to and governed by such amendments for all orders made by Purchaser after the effective date of such amendments.
    2. Entire Agreement. The Parties agree that these Terms and Conditions, Orders, Purchase Orders (as applicable) and all exhibits and addenda to any of the above, set forth the entire understanding of the Parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, whether written or oral, between the Parties with respect to such subject matter.
    3. Attorney Fees. If any suit or action is filed by any Party to enforce these Terms and Conditions or otherwise with respect to the subject matter of these Terms and Conditions, the prevailing Party shall be entitled to recover reasonable attorney fees incurred in preparation or in prosecution or defense of such suit or action as fixed by the trial court and, if any appeal is taken from the decision of the trial court, reasonable attorney fees as fixed by the appellate court.
    4. Governing Law/Choice of Venue. These Terms and Conditions will be governed and construed in accordance with the laws of the state of Oregon, without regard to conflict of laws. The federal or state courts located in Multnomah County, Oregon U.S. shall be, and shall be the sole and exclusive venue for any litigation that may arise from these Terms and Conditions. By execution of these Terms and Conditions, each Party hereby waives any claim that such courts constitute a forum non conveniens, and further consents to the in personam jurisdiction of such courts.
    5. Binding Effect; Assignment. These Terms and Conditions shall be binding upon and inure to the benefit of each Party’s respective successors and lawful assigns; provided, however, neither Party may assign any of its rights or obligations hereunder without the other Party’s prior written consent; provided Opal Kelly may assign its rights or obligations under these Terms and Conditions to an affiliated entity without the consent of Purchaser. Purchaser is not permitted to sub-contract, assign or transfer these Terms and Conditions in whole or in part to any third parties with the prior written consent of Opal Kelly.
    6. Enforceability. If any provision of these Terms and Conditions shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
    7. Waiver. A provision of these Terms and Conditions may be waived only by a written instrument executed by the Party waiving compliance. No waiver of any provision of these Terms and Conditions shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of these Terms and Conditions shall not operate as a waiver of such provision or any other provision.
    8. United Nations Convention on International Sales of Goods Does Not Apply To These Terms and Conditions. The Parties agree that the United Nations Convention on International Sales of Goods shall have no force or effect on these Terms and Conditions.