This Infrascale Warranty and Support Agreement is referenced in the Infrascale invoice and is entered into by and between Infrascale and the company identified in the invoice (“Customer”), effective as of the date set forth in the invoice (“Effective Date”).
The warranty period for Infrascale software and physical hardware appliance products is three (3) years from the Effective Date. Customers may purchase extended warranty periods, including Lifetime Warranty options.
Infrascale will provide free technical support and user support to Customers during the term of the Warranty Period. During published support hours, Infrascale will use commercially reasonable efforts to provide Customer with assistance to diagnose and resolve technical problems with the products (whether hardware or software based) through the Website, by email, by telephone (at the email address and telephone number indicated on the Website) or by any other means specified by Infrascale.
Infrascale will make available Software Updates during the term of the Warranty Period. Customer’s use of the Software Updates will be subject to the same license terms applicable to the software. “Software Updates” are enhancements, bug fixes, error corrections and patches. Software Updates are typically labeled with a change in the version number after the first decimal (e.g., 1.0 to 1.1).
“Software Upgrades” are new software releases, versions, modules or feature sets that may include new features, architectural changes and quality enhancements that allow Customer to upgrade from one version of Covered Software to the next version (e.g., 1.0 to 2.0). Software Upgrades are available at no charge to Customers during the term of the Warranty Period.
Infrascale will, at its option, repair or replace any product or component that fails during the term of this Agreement at no cost to Customer, provided that Customer contacts Infrascale’s Technical Support Center to report the failure and complies with Infrascale’s Warranty policies. Infrascale reserves the right to examine any allegedly non-conforming product and perform a failure analysis to determine whether the alleged non-conformance (a) is a result of defective materials or workmanship (in which case the remedies set forth herein shall apply); (b) does not exist, (c) results from issues external to the products such as problems with Customer’s network or systems, (d) was caused by improper use by Customer, (e) was caused by improper installation by Customer, (f) was caused by damage in transit due to improper packaging by Customer, or (g) was caused by damage or loss in transit arranged by Customer (in which cases (b-g) Customer shall have no right to any remedies hereunder). Upon receipt of Customer’s written or verbal notification of failure, Infrascale and Customer shall promptly exchange all relevant data reasonably necessary to determine the root cause of the alleged non-conformance and cooperate in good faith to establish a corrective action plan. If Infrascale determines that the non-conformance was due to defective materials or workmanship, Infrascale will issue a Return Material Authorization (“RMA”) for the non-conforming product, and Customer will return the non-conforming product or component thereof to Infrascale’s designated facility in accordance with the RMA procedures outlined below.RMA. Products returned to Infrascale must be pre-authorized by Infrascale with an RMA number marked on the outside of the package, and sent prepaid, insured and packaged appropriately for safe shipment. Only packages with RMA numbers written on the outside of the shipping carton and/or the packing slips and shipping paperwork will be accepted by Infrascale’s receiving department. Following confirmation of the failure of the original product or component, a replacement product or component will be shipped to Customer within the covered time frame. Customer will return the failed product or component to Infrascale under the RMA number issued by Infrascale promptly upon receipt of the replacement. Infrascale may invoice Customer and Customer agrees to promptly pay for any failed Products or components (a) with respect to which the damage to such Products or components is attributable to actions taken by Customer or any of its agents (including but not limited to the categories set forth in Section 5.3 below), or (b) not returned within ten (10) days of receipt of the replacement unit(s). Infrascale will invoice customer for the full amount of the cost of the component after ten (10) business days after receipt of the replacement unit if a return tracking ID has not been received by Infrascale via email or phone. Title to any returned Products or components will transfer to Infrascale upon receipt. Infrascale will be responsible for all freight charges for returned products or components provided Customer uses Infrascale’s designated carrier. Infrascale will replace defective media or documentation or, at its option, undertake reasonable efforts to modify the software to correct non-conformance with specifications.
For hardware appliance products under Infrascale’s Lifetime Warranty program, Infrascale will pay for the shipping costs of replacement parts or a replacement appliance to US addresses. This offer is for US shipping locations only and excludes any international freight charges including duty, VAT taxes, customs fees or any other surcharge related to international shipments.
Infrascale will make available its support portal, currently located at www.infrascale.com/support (the “Website”). Customer may use the website for logging a support request via Infrascale’s web-enabled case management tool. All Infrascale software that is available for download on the Website will be licensed to Customer in accordance with the license terms located at www.infrascale.com/terms. Customer acknowledges and agrees that Infrascale will be entitled to track usage and other statistics on the Website, information which may be used by Infrascale to improve its services or otherwise for its internal business without restriction.
Services Not Covered.
Notwithstanding anything to the contrary in this Agreement, the Services do not include the correction of, and Infrascale will have no obligation, responsibility or liability with respect to, any errors, defects or other problems caused by or resulting from: (a) Customer’s failure to implement any Software Update or Upgrade made available to Customer by Infrascale; (b) changes by Customer or third parties to an operating system, network configuration, or environment that adversely affect the Products; (c) any alterations or modifications of, or additions to, the Products made by parties other than Infrascale; (d) use of the Products in a manner for which they were not designed or other than as specified in the applicable documentation or specifications; (e) the combination, use, or interconnection of the products with other software or hardware not supplied or not approved by Infrascale; (f) use of the products on or with an unsupported hardware or software platform; (g) abnormal usage or misuse of the products, including, but not limited to, accident, fire, water damage, earthquake, lightning, other acts of nature, and other causes external to the products; (h) installation or maintenance of wiring, circuits, electrical conduits, or devices external to the products; (i) Customer’s failure to provide and continually maintain adequate electrical power, air conditioning, and humidity controls in accordance with product specifications or if not specified, as would reasonably be prudent; (j) Customer’s or a third party’s negligence; (k) any breach by Customer of this Agreement; (l) board level repairs made to the products, other than by Infrascale, unless the board repairs were approved in advance in writing by Infrascale; or (m) Customer’s refusal or failure to implement any error correction or replacement part made available to Customer by Infrascale.
Limitations on Support and Error Corrections.
The Services to be provided under Sections 3 and 4 are limited to addressing problems that are demonstrable and reproducible. Infrascale makes no commitment, representation, or guaranty regarding the amount of time it will take to diagnose or resolve a problem once it is brought to Infrascale’s attention. Except as expressly stated in this Agreement, Infrascale will have no obligation to correct errors in or failures of any products.
Services provided by Infrascale under this Agreement are limited to the products and are contingent upon Customer’s proper use of the product in the application for which it was designed. Infrascale will not be obligated to provide any service or to correct any malfunction, damage or other problem if the product: (a) has been altered, except by Infrascale or an Infrascale-designated representative or in accordance with Infrascale instructions, (b) has not been installed, operated, repaired, or maintained in accordance with Infrascale instructions, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, (d) has been operated outside of the environmental specifications for the product or (e) is related to configuration of Customer’s network beyond that necessary to the use or installation of products. Infrascale reserves the right to limit or terminate development support (including error correction services) of any product version one (1) year after the date of release of a subsequent product version. The foregoing restriction shall apply even if Customer elects to install a product version other than the then-currently shipping version of the product.
Infrascale specifically disclaims any and all support or repair obligations with respect to any application that has not undergone feature-set approval and Infrascale’s quality assurance process for feature integration (a “Non-Supported Application”). Customer acknowledges that if a new support case is created in accordance with Infrascale’s support process where the issue is suspected to be, or is found to be, attributable to a Non-Supported Application, Infrascale may elect one of the following two options, at its sole discretion: (i) remove the Non-Supported Application, following consultation with Customer, in order to continue to resolve the issue; or (ii) cease work on the case and recommend that Customer remove the Non-Supported Application from the product in order to continue toward resolution. If the product continues to function improperly or if the issue persists due to the Non-Supported Application, Infrascale will cease all support efforts on the case and will have no further support obligation with respect to such product until such time as the Non-Supported Application is removed. Upon Customer’s request, the parties will then cooperate to develop a mutually satisfactory “for-fee” arrangement for continuing work on the issue.
Infrascale’s obligation to perform the Services is conditioned on the following:
Customer will: (a) maintain the installation site in accordance with the applicable specifications for the products; (b) maintain the products and the operating environment for the products in good working order and in accordance with the specifications in the documentation for the products; (c) use the products in a proper manner by competent, trained personnel; and (d) implement all Software Updates and Upgrades (and if made available to Customer, Software Upgrades), error corrections and workarounds in a timely manner to be at the most current release of the product (or at most one release back).
At Infrascale’s request, Customer will allow Infrascale remote access to the products to enable Infrascale to perform remote diagnosis and service.
Customer will provide Infrascale with reasonable cooperation and assistance and with information as is reasonably requested by Infrascale in connection with Infrascale’s performance of the Services. Any information provided by Customer to Infrascale may be freely used by Infrascale for future versions of the products or otherwise without restriction.
Customer will be responsible for maintaining archive copies of all data residing in or relying in any way on the products. Infrascale will have no liability or responsibility for the loss of any data during the provision of the Services.
Infrascale retains all right, title, and interest in and to the intellectual property in the products and Covered Software, including any Software Updates, Software Upgrades, documentation, and all derivative works of the foregoing (collectively, “Infrascale Intellectual Property”). Customer does not acquire any rights, express or implied, in or to the intellectual property in the Infrascale Intellectual Property. Customer will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices of Infrascale or its licensors appearing in or on the Infrascale Intellectual Property, as delivered to Customer.
This Agreement shall be in effect for the term of service agreed to and purchased by Customer. Extension to the term of agreement may be purchased by the Customer at any time
This Agreement may be terminated for cause by either party upon written notice, if the other party (i) breaches any material term or condition of this Agreement and fails to remedy such breach within thirty (30) days after being given written notice thereof; (ii) becomes the subject of any voluntary or involuntary proceeding under the U.S. Bankruptcy Code or state insolvency proceeding and such proceeding is not terminated within sixty (60) days of its commencement, or (iii) ceases to be actively engaged in business.
Failure to Pay.
Infrascale will provide services without interruption for sixty (60) days in the case of delays in payment of Fees from Resellers for this Agreement. Infrascale will cooperate in good faith with Resellers to resolve payment issues, including the use of arbitration or mediation services. After sixty (60) days, if payment of Fees for this Agreement has not been received by Infrascale, Infrascale reserves the right to terminate this Agreement.
Effect of Termination.
Upon any expiration or termination of this Agreement, the rights and obligations of the parties under this Agreement will terminate, except that all definitions and the rights and obligations of the parties pursuant to Section 6 (only with respect to the license to Infrascale) , 8, 9, 10, 11, 12, and 13 will survive the termination or expiration of this Agreement.
Termination of this Agreement will be Customer’s sole and exclusive remedy for any breach of this Agreement by Infrascale.
INFRASCALE MAKES NO REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO ANY SOFTWARE UPDATES OR UPGRADES DOCUMENTATION, AND REPLACEMENT PRODUCTS OR PARTS, OR ANY OTHER ASPECT OF THIS AGREEMENT WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
IN NO EVENT WILL INFRASCALE OR ITS SUPPLIERS BE LIABLE TO CUSTOMER, CUSTOMER’S END USERS, OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (OR ANY DAMAGES ARISING FROM LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OR INACCURACY OF DATA, OR INTERRUPTION OF BUSINESS), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND FRAUD), PRODUCT LIABILITY, OR OTHERWISE ARISING OUT OR OF IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER OR NOT INFRASCALE OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. IN ADDITION, IN NO EVENT WILL INFRASCALE’S LIABILITY FOR DAMAGES ARISING UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY OR FOR CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD BEFORE THE DATE THE CAUSE OF ACTION FOR WHICH CLAIMED DAMAGES AROSE. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY INFRASCALE TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
Customer may not transfer or assign this Agreement, in whole or in part, without the prior written consent of Infrascale, which consent will not be unreasonably withheld. Infrascale may transfer or assign this Agreement upon notice, but without Customer’s consent, to an affiliate or a successor of all or substantially all of its business pertaining to this Agreement, whether by merger, consolidation, transfer or sale of all or substantially all of its business, assets, or equity. In addition, Infrascale may subcontract certain of its support services provided that any such subcontracting arrangement shall not relieve Infrascale of any of its obligations hereunder. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
Governing Law and Jurisdiction.
This Agreement will be governed by and construed in accordance with the laws of the State of California without regard or giving effect to its principles of conflicts of laws or to the United Nations Convention on Contracts for the International Sale of Goods. Infrascale and Customer submit to and hereby irrevocably waive any objection to the exclusive personal jurisdiction of, and that venue is proper in, any federal or state court in Los Angeles, California.
Export Law Compliance.
Customer will comply with all applicable United States export laws and regulations.
Any notice, request, demand, or other communication required or permitted in this Agreement will be in writing, will reference this Agreement, and will be effective: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt by the sending facsimile machine; (c) four (4) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two (2) business days after deposit with an express courier, with written confirmation of receipt. All notices will be sent to the address set forth below or other address for a party as specified in writing by that party.
If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of these rights.
Relationship between the Parties.
Infrascale is an independent contractor under this Agreement. Nothing in this Agreement creates a partnership, joint venture, or agency relationship between the parties.
Contractual Statute of Limitations.
No claim, demand, or cause of action that arose out of an event or events that occurred more than one (1) year before filing of the claim, demands or cause of action with a court of competent jurisdiction may be asserted by either party against the other.
Infrascale is not responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control. If the performance of Infrascale is interfered with for reasons beyond its reasonable control, Infrascale, upon prompt written notice to Customer, will be excused from performance to the extent of the interference. Infrascale will take all reasonable steps to remove the causes of non-performance and resume performance as soon as the causes are removed.
This Agreement, its exhibit and all invoices referencing this Agreement are the complete and exclusive agreement between the parties with respect to the subject matter of this Agreement, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding this subject matter. This Agreement will also supersede the terms of any purchase order or any other Customer document. Infrascale hereby expressly rejects terms and conditions preprinted on any Customer document. Any terms in any other order, release, contract, or other communication that are additional to, different from, or inconsistent with the provisions of this Agreement will be deemed to be void and of no effect. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
No Third Party Beneficiaries.
Nothing in this Agreement, express or implied, is intended to confer, nor will anything contained in this Agreement confer on, any person other than the parties and the respective successors or permitted assigns of the parties, any rights, remedies, obligations or liabilities.