Limited Warranty and Extended Warranty Programs
THE FOLLOWING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING, BUT NOT BY WAY OF LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VBRICK SPECIFICALLY DISCLAIMS AND EXCLUDES ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE. PRODUCTS OR PARTS WHICH ARE SAMPLES OR PROTOTYPES ARE SOLD “AS IS” “WHERE IS” WITH ALL FAULTS, i.e. WITHOUT ANY WARRANTY WHATSOEVER.
IF ANY COMPONENTS CONTAINED IN THE EQUIPMENT ARE THE SUBJECT OF A COMPONENT/MATERIALS MANUFACTURERS’ OR ANY OTHER THIRD PARTY’S WARRANTY, VBRICK HEREBY ASSIGNS TO CUSTOMER ALL OF VBRICK’S RIGHTS AND REMEDIES THEREUNDER, IF ASSIGNABLE.
WHEN SUBMITTING AN ORDER FOR SOFTWARE MAINTENANCE (REFERED TO THROUGHOUT THIS DOCUMENT AS SUPPORT SERVICES) YOU MUST CERTIFY THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. ADDITIONALLY, IF YOU ARE ACTING AS AN EMPLOYEE OR AGENT OF THE LICENSEE FOR THE VBRICK PRODUCT FOR WHICH SOFTWARE SUPPORT SERVICES ARE TO BE PROVIDED, YOU FURTHER CERTIFY THAT YOU HAVE FULL LEGAL AUTHORITY TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF THE LICENSEE.
DO NOT SUBMIT YOUR ORDER UNTIL YOU HAVE CAREFULLY READ, UNDERSTOOD AND AGREED TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, OR IF YOU DO NOT HAVE LEGAL AUTHORITY TO ACCEPT THEM ON BEHALF OF THE LICENSEE, VBRICK WILL NOT ACCEPT YOUR ORDER.
THE CHART BELOW IS A SUMMARY OF THE WARRANTY TERMS AND CONDITIONS APPLICABLE TO VBRICK’S LIMITED WARRANTY FOR PRODUCTS. THE TERMS AND CONDITIONS APPLICABLE TO VBRICK’S LIMITED WARRANTY ARE AS SET ONWARD BELOW.
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*Nominal fee per day charge, plus Travel and Expenses. Please refer to latest VBrick official price list for current charges.
I. PRODUCTS COVERED.
VBrick Systems, Inc. (“VBrick”) warrants to Customer the VBrick Software and Manufactured Equipment, including hardware, software and firmware (the “Equipment”): (i) to be free from defects in material and workmanship under normal use and service, and (ii) to conform in all material respects to the printed specifications for the Equipment which have been delivered to Customer in connection with Customer’s purchase of the Equipment.
Provision of Software Maintenance Software Support Services by VBrick are conditioned upon Customer having deployed the current shipping release of the respective VBrick Product for which such Software Support Services are to be provided*. Only these terms and conditions, notwithstanding any preprinted or other terms and conditions on Customer's Purchase Order shall govern your purchase and VBrick's provision of Software Support Services.
*Upgrades to the latest version will be provided free of charge according to the program purchased by the Customer. VBrick does not guarantee it can support versions of software other than the current shipping release.
II. LENGTH OF WARRANTY.
Warranty and Software Maintenance shall commence upon the date indicated in the VBrick confirmation notice and shall continue in full force and effect for a period of one (1) year. Customer may, at the time of your initial order, purchase up to five (5) years of Subscription Service. VBrick or Customer reseller will automatically renew your subscription on an annual basis. VBrick will provide Customer with no less than thirty (30) days prior written notice of any pending Software Subscription Service changes with details on any pricing and/or modifications to these terms and condition. Software Subscription Services may be renewed for additional terms upon VBrick's acceptance and confirmation of Customer request.
III. WHO OR WHAT IS COVERED?
This Limited Warranty covers only the VBrick Software and VBrick Manufactured Equipment acquired by the original End Customer.
IV. EXCLUSIONS.
This warranty shall be void if the Customer fails to use or maintain the Software or Equipment in accordance with VBrick’s specifications or instructions, or if the Software or Equipment or any part thereof has been subject to any unauthorized modifications, improper operation, user negligence, service by an unauthorized person, company or association, use with any unauthorized attachment, device or feature, accident neglect, misuse, tampering, acts of God, or any event other than ordinary use.
The following points are not included in VBrick’s Limited Warranty and Gold and Platinum programs
- Support on any product not manufactured or produced by VBrick
- Professional services:
- Integration with 3rd party equipment,
- Installation support for new VBrick equipment
- VBrick Technical Support Services personnel performing or providing over the phone a step by step upgrade of the Equipment.
- Support Services related to the relocation of VBrick equipment or the elimination or addition of new VBrick equipment or third party equipment, such as network equipment, audio and video devices, or custom software applications or programs.
- Feasibility Studies
- Equipment Upgrades/Updates that also require hardware upgrades in order to utilize new functionality of the software. Any such hardware upgrades is not covered. Customer may purchase the hardware upgrades at the price set forth in the latest-current VBrick Price List, less applicable discount (if any).
V. LIMITATION OF LIABILITY.
VBrick’s sole obligation and Customer’s sole remedy for any failure of the Equipment is limited to the repair or replacement of any part of the Software and/or Equipment at VBrick’s discretion, which examination shall disclose to VBrick as defective. VBrick shall not be liable for indirect, special, consequential or liquidated damages or penalties, including claims for lost revenue, profits or business opportunities, even if VBrick had or should have had any knowledge, actual or constructive, of the possibility of such damages. VBrick reserves the right to satisfy its warranty obligations in full by refunding the purchase price of the Equipment. Nothing herein shall obligate VBrick to make such a refund.
Software Updates and Upgrades: If VBrick, in its sole discretion, creates Software Updates or Software Upgrades to the VBrick Product during the term for which Customer have purchased Software Support Services, VBrick shall provide all such Software Updates and Software Upgrades to Customer designated technical contact. Distribution of Software Updates or Software Upgrades does not include installation by VBrick. VBrick will provide Customer with all such Software Update or Software Upgrades when VBrick makes them available to its general customer base for the VBrick Product. All Software and related materials provided pursuant to Software Support Services, including documentation and program materials are subject to these terms and conditions and the respective license agreement for the VBrick Product.
VI. HOW TO OBTAIN WARRANTY SERVICE.
To receive warranty services, Customer must register equipment under their name upon arrival at http://registration.vbrick.com, or via mail to:
Technical Support Services – Registration Department
12 Beaumont Rd
Wallingford, CT 06492
Customer must notify VBrick promptly by telephone, and/or via our website of any alleged defect with the Equipment or software, including a detailed description of such alleged defect. For warranty verification purposes, the customer must furnish VBrick Technical Support Services with the equipment serial number or warranty contract number. Failure to provide this number may delay service response time or require payment for services. VBrick’s telephone number for warranty service is (203) 303-0222. VBrick’s support website is located at http://www.vbrick.com/support. Upon notifying VBrick of an alleged defect with the Equipment and after defect has been verified by VBrick’s Technical Support Services, Customer agrees not to use the Equipment until further notice by VBrick. Customer shall bear all risks of operation, if Customer operates the Equipment prior to VBrick’s determination that the Equipment is suitable for operation, and VBrick shall bear no liability whatsoever for any damages, losses or claims that may arise due to such operation.
Upon notification of a possible defect and after defect has been verified by VBrick’s Technical Support Services, VBrick will provide to customer a Return Merchandise Authorization (“RMA”).
Technical Customer Support is available via telephone at (203) 303-0222, email: support@vbrick.com, or website: http://www.vbrick.com/support, from 8:30 AM to 7:00 PM Monday to Thursday and 8:30 AM to 5:30 PM Friday (U.S. Eastern Time). Priority will be given to Customers who have purchased Extended Warranty / Maintenance Program. Expected response time for Gold products is 24 business hrs and 4 business hrs for Platinum products.
VII RETURN MATERIAL AUTHORIZATION (RMA)
All equipment under abnormal operation must be verified by a VBrick Technical Customer Support representative before it is assigned a Return Material Authorization (RMA) number. If Customer elects to avoid the verification process, a PO for VBrick’s in-house diagnostics fee (consult latest price list for diagnostics fee charges) will be required. If equipment is deemed faulty, diagnostic fees will be void.
Replacement equipment will not be shipped without an RMA number assigned. All Equipment received by VBrick without an RMA number will be returned to the customer without being repaired. Customers must return the Equipment in need of repair with the same serial number as reported in the RMA. If equipment with a different serial number is returned under the RMA, the equipment will be returned without being repaired. Customer must ship the Equipment to VBrick, at Customer’s expense. Customer is responsible for properly packing the Equipment before it is shipped to VBrick.
If VBrick determines that the defect was not caused by accident, improper use, abuse, neglect, unauthorized alteration or service, inconsistent use with the specifications or any use other than ordinary use, VBrick shall, at its option, repair or replace the applicable part(s) of the Equipment within the limits of the program in which the Equipment is enrolled, and at VBrick’s expense, return the Equipment to the Customer in the same or equivalent manner that the Equipment was delivered to VBrick.
Next Day Shipment: ensures that a replacement for defective Equipment will be shipped to the Customer before requiring the Customer to return the defective Equipment to VBrick. Equipment will be shipped to arrive at Customer's site the next business day after dispatch. However, any requests for replacement Equipment processed in North America after 3:00 PM Eastern Time (ET) may ship the following business day for second business day delivery. Any international requests for replacement processed after 3:00 PM ET may ship the following business day for international delivery. Delivery times depend upon each country customs regulations. VBrick is not responsible for any customs or tax charges related to any country other than the U.S.A. A replacement Equipment may be new or reconditioned of like kind, functionality, and quality. The defective Product or part must be returned to VBrick within fifteen (15) days of receipt of the replacement product; all shipping costs are borne by Customer. In the event the defective Equipment is not returned within fifteen (15) days, or is returned in an unacceptable condition, Customer agrees to pay the list price per Equipment as stated in the latest-current VBrick price list. Failure to pay the price or return the defective Equipment promptly will result in the suspension of Services or any other Warranty contracted by the Customer. Any single request for a single shipment of five (5) or more Equipment of the same type may be subject to delays.
VIII. REPLACEMENT PARTS.
Parts replaced during the Limited Warranty Period, as applicable, will be covered for the remaining term of such period or for thirty (30) days from time of replacement, whatever is longer. Such replacement parts may, at VBrick’s option, be new or remanufactured. All parts removed from warranted Equipment shall become property of VBrick.
IX. PLATINUM PROGRAM - EXTENDED WARRANTY / MAINTENANCE -
Customers may purchase VBrick’s Extended Warranty / Maintenance Program (Platinum) for their equipment at any time within thirty (30) days from the date indicated in the VBrick confirmation notice -and for additional 1 year incremental periods if renewals of the Extended Warranty / Maintenance Program are purchased (the “Extended Warranty / Maintenance Program”).
Hardware coverage/warranty under this program is provided up to 5 years from the date the equipment is shipped from VBrick’s facilities. After this period this program only covers technical support and major software releases.
X. GOLD and GOLD PLUS PROGRAMS - EXTENDED WARRANTY / MAINTENANCE -
VBrick’s Limited Warranty Gold Program is in effect for one (1) year from the date indicated in the VBrick confirmation notice -and for additional periods if renewals of the Extended Warranty / Maintenance Program are purchased (the “Extended Warranty / Maintenance Program”). Periods must be consecutive one to each other. Customer shall not be allowed to renew the program for their Equipment and/or Software in the case the program period expired for the Equipment and/or Software in question and Customer missed to renew between 30 days of renewal due date.
Hardware coverage/warranty under this program is provided up to 5 years from the date the equipment is shipped from VBrick’s facilities. After this period this program only covers technical support and minor software releases.
XI. SOFTWARE COVERAGE
Software: means all computer programming code, entirely in binary form, which is directly executable by a computer and includes those computer programs which have been licensed to Customer either as a separate product or as part of another VBrick Product.
Software coverage includes the following:
- Major Software Release (Software Upgrade): initial or new version of a software product or application. It means a version of the Software as classified by VBrick which has been enhanced, improved and/or modified and replaces the existing version of the Software. This includes any minor software releases, user interface changes, usability changes, and new features and functions. As an example a major release is denoted by a version change from 2.0 to 3.0
- Minor Software Release (Software Update): piece of software designed to correct discovered deficiencies and/or bugs affecting performance to the software description, program or its supporting data. This includes improved performance, bugs fixes, or graphics replacement. As an example a minor releases is denoted by version changing from 2.0 to 2.1.
- Software upgrades during the Extended Warranty/Maintenance Program period. The upgrades will be provided to the Customer via CD-ROM or VBrick’s website. The Customer is required to perform the upgrade.
- Software upgrades may not include upgrades that require disassembly of the Equipment.
XII. HARDWARE COVERAGE
Hardware coverage includes the following:
- Repair or replacement of defective Equipment during Warranty Program period.
- Firmware upgrades (upgrades of code that require disassembly of Equipment).
XIII. TECHNICAL SUPPORT SERVICES
The following is an explanation of services performed at each level:
- Level 1: provide answers and helpdesk for Equipment features. Basically all the “what” questions. This information can be found in the Equipment Documentation.
- Level 2: diagnose and troubleshoot complex network problems including multicast issues. Diagnose and troubleshoot Server software related problems. Provide answers on how to perform upgrades. Basically able to answer the entire “how” questions. This information can be found in the Equipment documentation and in training materials.
- Level 3: diagnose and troubleshoot “error and abnormal Equipment behaviors”.
Onsite Support: When a problem cannot be resolved by utilizing remote technical support, VBrick will dispatch an engineer to arrive on-site pursuant to the Service level purchased by Customer. VBrick will not be held responsible for delays in the delivery of the services due to Customer's stoppage to provide access to Customer's facilities or due to security requirements. VBrick may comply with all Government or Customer imposed security requirements.
The Extended Warranty/Maintenance Program is obtained in the manner outlined in Part IX, X above and is limited as provided in the introduction and Parts III, IV, V, VII, VII and XI, XII, XIII above.
XIV. PRODUCTS OUT OF WARRANTY RE-JOINING A WARRANTY PROGRAM
- No product can be renew under the old warranty program except for products from GSA customers and only until the new GSA pricing becomes effective.
- If warranty coverage has lapsed, there can be NO Hardware repair claim made for a minimum of 60 days after the renewal. If a claim is made within the first 60 days - it will be billed to the customer at the published repair rate.
- Reinstatement fees will be assessed at the following rates:
- Less than 183 days - will be prorated for the period based on the warranty coverage agreement being purchased.
- More than 183 days will be 75% of a one year support agreement based on the warranty coverage agreement being purchased.
XV. REPAIR SERVICE OUTSIDE WARRANTY OR MAINTENANCE PROGRAM POLICY.
In the event that Equipment requires service that is not covered by VBrick’s Limited Warranty or any other Program, Equipment may be shipped to VBrick for repair via VBrick’s standard charges. Customer must notify VBrick’s Technical Customer Support of the problem via telephone at (203) 303-0222, or via website at http://www.vbrick.com/support, obtain a RMA and ship the Equipment to VBrick, at Customer’s expense. Repairs are performed under flat fee charges (please refers to latest VBrick’s price list for charges). VBrick will repair the Equipment within five (5) business days from the date the equipment is delivered at VBrick’s facilities and will, at VBrick’s expense, return the Equipment to Customer in the same or equivalent manner that the Equipment was delivered to VBrick.
Limited Services Warranty. THE PROVISION OF SOFTWARE SUPPORT SERVICES DOES NOT EXTEND, MODIFY OR ENHANCE THE ORIGINAL SOFTWARE WARRANTIES, IF ANY, FOR THE VBRICK PRODUCT (S). VBRICK DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES WITH RESPECT TO INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
VBRICK NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PARTY TO ASSUME ANY OTHER LIABILITIES IN CONNECTION WITH THE SOFTWARE SUPPORT SERVICE(S) PROVIDED HEREUNDER.
Force Majeure.
VBrick shall not be liable for its failure to perform due to unforeseen circumstances or any causes beyond VBrick's reasonable control ("Force Majeure"). In the event of Force Majeure, VBrick's performance will be extended for a period equal to the duration of the delay caused hereby.
Termination for Default, Unsupportable Implementations.
VBrick reserves the right to terminate any Equipment or Software Support Services provided hereunder if VBrick, in its sole discretion, determines that Customer implementation of the VBrick Product for which such Software Support Services are procured is not supportable by VBrick. In such event, VBrick will promptly notify Customer in writing and a pro-rata refund of any applicable Warranty fee(s) will be provided.
Additionally, without limiting any other remedies available under this Agreement, at law, or in equity, VBrick shall have the right to terminate this Agreement with prior notice for Customer violation of any of the material provisions hereunder if such violation remains uncured for a period of thirty (30) days after receipt of notice.
Assignment.
Customer may not assign Software Support Services without the prior written approval of VBrick, except to a successor in-interest as a result of a merger, acquisition, or other change of control. Any other assignment performed in the absence of VBrick's prior written consent will be null and void.
Export Law Regulations.
Customer agrees that will not export, either directly or indirectly, any VBrick Product, material or data provided in the course of receiving Software Support Services without first obtaining any required license or other approval from the U. S. Department of Commerce or any other agency or department of the United States Government. In the event that Customer export any VBrick Product from the United States, or re-export it from a foreign destination, Customer agrees to ensure that the distribution and export/re-export or import of the VBrick Product is in compliance with all laws, regulations, orders, or other restrictions of the U.S. Export Administration Regulations and the appropriate foreign government. Customer agrees that neither Customer nor any of Customer subsidiaries will export/re-export any VBrick Product, material or data provided in the course of receiving Software Support Services, directly or indirectly, to any country for which the United States government or any agency thereof or the foreign government from where it is shipping requires an export license, or other governmental approval, without first obtaining such license or approval.
General Provisions.
a. Customer acknowledges that in providing Software Support Services, VBrick is acting as an independent contractor.
b. Customer completed order for Software Support Services, these terms and conditions and the respective end user license agreement for the VBrick Product constitute the entire agreement between the parties on the subject matter herein ("Agreement") and supersedes all prior and contemporaneous agreements and understandings, including without limitation, any different, conflicting or additional terms and conditions which may appear on any purchase order or other writing which Customer may submit to VBrick. To the extent that there are any conflicts between Customer completed order for Software Support Services, these terms and conditions, and the end user license agreement for the VBrick Product, these terms and conditions of this Agreement shall govern.
c. Any claim arising under or relating to this Agreement shall be governed by the internal substantive laws of the State of Delaware or federal courts located in Delaware, without regard to principles of conflict of laws.
d. All rights and remedies whether conferred hereunder, or by any other instrument or law will be cumulative and may be exercised singularly or concurrently. The provisions of this Agreement are deemed to be severable. In case that public policy overrules a provision set forth in these terms and conditions or a provision is not enforceable, other provisions are not affected. Failure by VBrick to enforce any term will not be deemed a waiver of future enforcement of that or any other term. Furthermore, Customer agrees that the terms of the Convention of Contracts for the International Sale of Goods (CISG) do not apply to this Agreement.
e. Software Maintenance is sold for each VBrick appliance, or supported computer, and may be applied to those products specified by serial number at the time of purchase.
f. Customer shall notify VBrick in writing that wants to renew Warranty / Services for the Equipment and/or Software between 30 days of Warranty / Services expiration date.
VBrick reserves the right to modify the terms and conditions of this Limited Warranty, Service, and Programs at any time. VBrick will provide a written notification to customers with 30 days in advance of such modifications. The Customer may elect to reject the changes and terminate the Warranty, Services, and/or Program. If the Customer terminates their services under previous conditions, they will receive a prorated money refund for the time left on their contracted Warranty, Services, and/or Programs.
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