This Hardware Extended Warranty (the “Extended Warranty”) is between Exinda, Inc., its affiliates, subsidiaries, or licensors (hereinafter “Exinda”) and you, the purchaser of the Extended Warranty (Hereafter known as the “Customer”; Exinda and Customer are known herein individually as “Party” and together as “Parties”).
Term. Customer’s coverage under this Extended Warranty commences on the date Customer’s Exinda hardware appliance product (the “Hardware”) is delivered to Customer (the “Delivery Date”) and expires three (3) years from such date (the “Extended Warranty Period”). The coverage provided herein overlaps the limited warranty coverage provided in the Hardware Sale Agreement you agreed to with Exinda (the “Hardware Sale Agreement”).
Payment; Purchase Price and Associated Charges. This Extended Warranty must be purchased within thirty (30) days of the Delivery Date. Payment must be made in full at the time of purchase or no extended warranty will be granted. Customer is also responsible for all taxes related to this purchase.
Scope of Coverage. Under this Extended Warranty, Exinda warrants the Hardware against defects in materials and workmanship under normal use (the “Warranty”) for a period of three (3) years, as stated above, on the condition that the Extended Warranty has been completely paid for. Unless as otherwise mandated by local law, the Extended Warranty Period does not restart if Customer receives a replacement appliance and/or replacement software during the Return Merchandise Authorization process. This Extended Warranty only applies to a single product purchased.
As noted in the Hardware Sale Agreement, Exinda disclaims all other warranties, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, or against hidden or latent defects. Exinda’s responsibility for extended warranty claims is limited to repair or replacement. Exinda reserves the right to modify this Extended Warranty at any time, at its sole discretion, and with notice to Customer.
Exinda does not warrant that the Hardware or any networks or systems protected by the Hardware will be free from vulnerability, intrusion, attack, or other damage. Exinda does not warrant that the operation of the Hardware will be uninterrupted or error-free. Exinda is not responsible for damage arising from failure to follow instructions relating to the Hardware’s use. This Extended Warranty does not apply: (a) to consumable parts, such as batteries, unless damage has occurred due to a defect in materials or workmanship; (b) to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports; (c) to damage caused by accident, abuse, misuse, neglect or failure to properly maintain (to include but not limited to water damage and/or condensation or improper temperatures during storage), or improper installation; (d) to damage caused by electrical disturbances or acts of God, to include but not limited to civil disturbance, war, flood, fire, rodents or insects; (e) where manufacturer’s serial numbers have been removed from the Hardware; and (f) to damage caused during shipment (due to Customer’s improper packaging) from Customer to Exinda in the case of Hardware returns for repair.
Technical Support and Repair. To receive technical support or have the Hardware repaired, Customer should follow the procedures provided in the “Technical Support” and “Repair” sections of the Hardware Sale Agreement, respectively. The terms and conditions of such sections remain in effect and are incorporated herein by reference. A current copy of Exinda’s Hardware Sale Agreement and Exinda contact information can be found at https://www.exinda.com/legal (or at any successor or related locations designated by Exinda), as it may be updated from time to time.
Limitation of Liability. To the extent permitted by applicable law, Exinda is not liable for any amount above the aggregate dollar amount paid by Customer for the purchase of this Extended Warranty if found to have breached this Extended Warranty. Except as provided hereunder and to the extent permitted by law, Exinda is not responsible for indirect, special, incidental or consequential damages resulting from any breach of this Extended Warranty, including but not limited to loss of use; loss of revenue; loss of actual or anticipated profits (including loss of profits on contracts); loss of the use of money; loss of anticipated savings; loss of business; loss of opportunity; loss of goodwill; loss of reputation; loss of, damage to or corruption of data or software programs; or any indirect or consequential loss or damage howsoever caused including the replacement of equipment and property, any costs of recovering, programming, or reproducing any program or data stored or used with the Hardware and any failure to maintain the confidentiality of data stored on the product. The foregoing limitation shall not apply to death or personal injury claims, or any statutory liability for intentional and gross negligent acts and/or omissions.
FOR CUSTOMERS IN JURISDICTIONS WHO HAVE THE BENEFIT OF CONSUMER PROTECTION LAWS OR REGULATIONS, THE BENEFITS CONFERRED BY THIS EXTENDED WARRANTY ARE IN ADDITION TO ALL RIGHTS AND REMEDIES PROVIDED UNDER SUCH LAWS AND REGULATIONS. TO THE EXTENT THAT LIABILITY UNDER SUCH LAWS AND REGULATIONS MAY BE LIMITED, EXINDA’S LIABILITY IS LIMITED, AT ITS SOLE OPTION, TO REPLACE OR REPAIR OF THE HARDWARE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY.
Termination. Customer may terminate this Extended Warranty within thirty (30) days of the Delivery Date. Exinda may terminate this Extended Warranty with immediate effect in cases of fraud or misrepresentation by Customer, and in such cases no refund will be provided.
Entire Agreement. This Extended Warranty and the Hardware Sale Agreement constitute the entire understanding of the Parties regarding Exinda’s warranty coverage of the Hardware and supersedes all prior offers, agreements, arrangements, negotiations and understanding, written or oral between the parties relating to that subject matter. Moreover, for clarity, the warranty coverage provided under this Extended Warranty is inclusive of and extends the limited warranty coverage provided under the Hardware Sale Agreement. To the extent that the two coverages conflict, the coverage provided hereunder is controlling. Otherwise, the Hardware Sale Agreement remains in effect.
Severability; Assignment. If any provision of this Extended Warranty is held to be unenforceable for any reason, the legality or enforceability of the remaining terms shall not be affected or impaired. Customer may not assign, delegate or otherwise transfer (whether by operation of law or otherwise) this Extended Warranty or any of rights or obligations hereunder without the prior written consent of Exinda. Exinda may assign the provision of repair services to third parties.
Governing Law; Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Extended Warranty or to a breach thereof, including its interpretation, performance or termination, shall be finally resolved by arbitration. The arbitration shall be conducted in English and in accordance with the then-current WIPO Expedited Arbitration Rules, which shall administer such arbitration. The arbitration, including the rendering of the award, shall take place in Austin, Texas, USA. For the purposes of this arbitration, this Extended Warranty shall be governed by and construed under Texas law. The decision of the arbitrators shall be binding upon the parties hereto, and the expense of the arbitration (including without limitation the award of attorneys' fees to the prevailing Party) shall be paid as the arbitrators determine. The decision of the arbitrators shall be executory, and judgment thereon may be entered by any court of competent jurisdiction.
Notwithstanding anything contained in this Section, either Party has the right to institute judicial proceedings against the other Party or anyone acting by, through or under such other Party in order to enforce the instituting Party's rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.
Any non-English language translation of this Extended Warranty is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Extended Warranty shall govern.
Last Updated: December 15, 2017