This Hardware Addendum (this “Addendum”) is an addendum Vendor’s End User License Agreement (the “Agreement”) and defines the specific additional terms and conditions under which Vendor agrees to sell to Client certain Hardware as set forth on an Order Form.
This Hardware Addendum is subject to the terms and conditions outlined in the Agreement. Capitalized terms used but not defined in this Addendum will have the meaning assigned to them in the Agreement. Unless expressly stated otherwise below, in the event of any inconsistency or conflict between the Agreement and the terms of this Addendum, the Agreement will prevail.
Article I. Definitions
The following terms when used herein shall have the respective meanings set forth below:
“Firmware” means Software programmed into the applicable Hardware, including any applicable updates thereto.
“Third-Party Applications” means any third-party software products included in the Hardware, which license terms and conditions are incorporated herein by reference.
“Warranty Period” means the twelve (12) month period following the Delivery Date.
Article II. Delivery; Risk of Loss; Title
2.01 Delivery; Payment.
Subject to and conditioned on Client’s payment of fees and compliance with all other terms and conditions of the Agreement and this Addendum, Vendor will use commercially reasonable efforts to deliver Hardware on the date specified in the applicable Order Form to the address specified in such Order Form. If Vendor’s inventory of Hardware is inadequate to meet customer demand, Vendor reserves the right, in its sole discretion, to allocate available Hardware among its customers (including Client) in such a manner as Vendor deems equitable and without liability to Client. Vendor will not be liable to Client for any delay in the delivery of Hardware. Hardware is deemed accepted on the Delivery Date. Client agrees to pay all fees in accordance with each Order Form.
2.02 Risk of Loss.
Hardware shipments will be made EXW (Incoterms 2020 or any later version) at Vendor’s loading dock, and risk of loss for the Hardware shall transfer to Client at such time as the Hardware is made available at such loading dock (“Delivery Date”). Client is responsible for selecting the mode of shipment for Hardware, though Vendor may designate the mode if none is selected by Client without assuming any additional risk for loss.
2.03 Transfer of Title.
Title to purchased Hardware shall transfer to Client once Vendor has received payment in full. If applicable law does not allow or recognize retention of title by Vendor after delivery, title to purchased Hardware, will pass to Client on the Delivery Date, but Vendor shall retain a security interest in the Hardware to secure payment of the purchase price. In such case, Client agrees to sign any documents that Vendor reasonably deems necessary or convenient for use in filing or perfecting such security interest.
2.04 Software; Third Party Applications.
Notwithstanding any provision herein to the contrary, Client shall take no title to any Third-Party Applications or the Firmware. The use and access of the Firmware shall be governed solely by the Agreement. The use and access of any Third-Party Application shall be governed by the license terms governing such Third-Party Application.
Article III. Limited Warranty
3.01 Hardware Warranty.
Subject to the provisions of this Article III and Article VI of the Agreement (Indemnification; Limitation of Liability), Vendor warrants that, during the Warranty Period, all components of the Hardware shall be free from faulty workmanship and defective materials under normal use and service (“Hardware Warranty”). The Hardware Warranty is the only express warranty provided by Vendor. The Hardware Warranty may be modified only by express written agreement between the Parties and may not be modified or amended by any course of dealing between the parties or custom and practice in the industry. Client’s remedies and Vendor´s aggregate liability with respect to the Hardware Warranty are set forth in and limited by this Article III and Article VI of the Agreement.
3.02 Hardware Warranty Claims.
For each claim of breach of the Hardware Warranty received by Vendor during the Warranty Period, Vendor will, at its sole option: (i) repair the Hardware such that it meets the Hardware Warranty, (2) replace the Hardware with comparable Hardware, or (3) refund the amount paid to Vendor for the Hardware upon its return by Client. All replacement or repaired Hardware shall be warranted for the remainder of the original Warranty Period. Hardware and components that are replaced by Vendor shall remain Vendor´s property. Hardware that is Vendor’s EJCBA Hardware Appliance shall be repaired as set forth in the Service Level Agreement.
3.03 Warranty Conditions.
The Hardware Warranty is strictly for the benefit of Client and does not extend to any third party. The Hardware Warranty is contingent upon Client’s (i) payment of all fees. (ii) proper use of the Hardware in accordance with any instructions or manuals provided by or available from Vendor, and (iii) prompt reporting of the claim. Vendor´s obligations under the Hardware Warranty are subject to Vendor´s examination of the Hardware and Vendor´s determination to its reasonable satisfaction that the claimed defect or fault actually exists and is not excluded from Vendor´s warranty under this Section 3.03 or Section 3.04.
3.04 Warranty Exclusions.
The Hardware Warranty does not apply to consumable items (e.g., batteries). The Hardware Warranty will be rendered void if Vendor´s serial numbers, warranty data or quality assurance decals on the Hardware are removed or altered. The Hardware Warranty shall not apply, and Vendor shall have no obligations thereunder, if the defect or fault giving rise to the claim is caused by any of the following after the Delivery Date:
(a) Accident, unusual physical, electrical or electromagnetic stress, neglect, or misuse,
(b) failure of electric power or environmental controls,
(c) rough handling during transportation,
(d) Client’s failure to maintain the Hardware in accordance with Vendor´s specifications, or
(e) modifications, alterations or repairs by Client or a party other than Vendor (unless specifically authorized by Vendor in writing).
3.05 Return of Hardware.
If Hardware must be returned to Vendor for repair or replacement under the Hardware Warranty, prior to such return, Client must contact Vendor to verify the existence of a warrantable defect in the Hardware and to obtain a Return Merchandise Authorization (“RMA”) number and the correct return shipping address. Client shall deliver the Hardware to Vendor with the RMA number on the package. Vendor will not accept returns of Hardware that do not include a valid RMA number on the package. Client assumes the risk of damage to or loss of returned Hardware in transit. Client is responsible for removing all Confidential Information from Hardware prior to its return, and Vendor shall have no responsibility or liability with regard to data or information contained in returned Hardware. If Vendor reasonably determines that the returned Hardware is not defective or faulty within the terms of the Hardware Warranty or a warranty exclusion applies, Client shall pay or reimburse Vendor for all costs of handling, transportation, diagnostics and repairs at Vendor´s then prevailing rates.
Article IV. Miscellaneous
4.01 Entire Agreement.
Except as set out in this Addendum, all warranties, representations, conditions, terms, and undertakings, express or implied, whether by statute, common law, custom, trade usage, course of dealings or otherwise (including, without limitation, as to quality, performance or fitness or suitability for purpose) in respect of the Hardware are excluded to the fullest extent permitted by law. In no event shall any other provisions, terms or conditions set forth on a Purchase Order be binding on Vendor unless signed by duly authorized representatives of each Party.
Client shall be responsible for any Taxes against the Hardware in Client’s possession (collectively, “Taxes”). If Vendor is required to pay any such Taxes and/or fines, penalties or assessments as a result of Client’s failure to comply with any laws or regulations governing payment of such Taxes, the amount of any payments so made, plus the expense of currency conversion (if applicable), shall be promptly reimbursed by Client upon submission of Vendor’s invoice thereof. If Client is required to pay any withholding tax on the use of the Software, Client agrees to promptly make such additional payment such that Vendor shall receive fees due hereunder in full and free of any deduction for any such withholding tax.
4.03 Export Regulation.
Client agrees to comply with all applicable export laws and export controls and complete all required undertakings (including obtaining any necessary export license or other governmental approval). Client warrants that it shall not, directly or indirectly, export or re-export the Hardware or the underlying software or technology to or make the Hardware or the underlying software or technology accessible from, any jurisdiction or country to which export, or re-export is prohibited by law, rule, or regulation. Client acknowledges that shipments of the Hardware may be subject to export laws and that such laws could delay or preclude delivery of Hardware in the future.