Extended Warranty Terms & Conditions
THIS EXTENDED SERVICE AGREEMENT (this “Agreement”) is made by and between Disgital, Inc., a Delaware corporation, with its principal place of business in Chicago, Illinois, on behalf of itself and its subsidiaries (collectively “Disgital”) and the original end-user customer (“Customer”) and is binding upon Customer when services are purchased. This Agreement is retroactively effective as of the date of the initial purchase order for the services (“Effective Date”).
WHEREAS, Disgital offers certain fee-based extended services in the United States in conjunction with the purchase of certain Disgital products.
WHEREAS, Customer desires to purchase one or more of the extended services (hereinafter the “Services”) for certain Disgital products (hereinafter the “Product(s)”).
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:
1. TERMS AND CONDITIONS.
(a) This Agreement includes the terms and conditions under which the Services shall be performed, and contains, among other things, warranty disclaimers and limitations of liability. PURCHASING SERVICES CONSTITUTES CUSTOMER’S AGREEMENT TO AND ACCEPTANCE OF THESE TERMS AND CONDITIONS.
(b) CUSTOMER SHALL BE ELIGIBLE FOR THE SERVICES ONCE THE PRODUCT IS REGISTERED WITH DISGITAL. REGISTRATION WILL BE CONSIDERED COMPLETE ONCE THIS EXTENDED WARRANTY AGREEMENT HAS BEEN PAID FOR IN FULL.
(c) This Agreement may only be modified as set forth herein and any different or additional terms of any related purchase order, confirmation, or similar form, even if signed by the parties after the Effective Date hereof, shall have no force or effect.
(d) Disgital reserves the right to (i) amend this Agreement from time to time effective upon posting of the revised terms and conditions to its website at www.masjidal.com, and (ii) discontinue hardware or software Products or versions and accordingly stop supporting Products or versions one (2) years after discontinuance, or otherwise discontinue any support Service at any time. Section 7 sets forth Customer’s sole remedies for any claim relating to the amendment or discontinuance of the Services, including any failure to provide the Services hereunder.
(e) By purchasing Services, Customer agrees it received, read, understood and accepts the applicable terms and conditions set forth in this Extended Service Agreement.
2. SUPPORT. Disgital has established and agrees to maintain an organization and process to use reasonable commercial efforts to provide support services for the Product(s) to Customer including but not limited to (i) remote troubleshooting from installation, configuration, and successful diagnostic testing for the Disgital Product; (ii) advisory support on basic configurations, compatibility, and cabling specifications; (iii) RMA authorizations; provided, however, that Customer shall return the non-conforming Product with the freight pre-paid, in accordance with any special shipping instructions provided by Disgital, and shall reference the RMA# on all shipping documents and in any subsequent communications regarding the particular Product; and (iv) twenty-four (24) hours a day, seven (7) days a week access to a support web-site with FAQ’s and manuals. The specific terms for each Service are described in the attached Exhibit A, which is hereby incorporated by reference. Disgital reserves the right to change the Extended Service programs and any supporting documentation at any time.
3. EXCLUSIONS. The Services hereunder do not include: (a) support of any non-Disgital hardware or software; (b) on-site support; (c) non-Disgital application installation or trouble shooting; (d) non-Disgital operating system installation or trouble shooting; or (e) networking configuration.
4. FEES. Fees for the Services are outlined in the applicable purchase order for the Services, subject to written acceptance by Disgital. Fees shall be due immediately upon purchase.
5. AUDIT. Disgital reserves the right to audit Customer’s use of the Services for the Product(s) registered under the terms of this Agreement for purposes of verifying eligibility. Customer agrees to cooperate with verification of eligibility hereunder and to ensure compliance with the terms of this Agreement in a mutually agreeable manner.
6. TERM. This Agreement shall start on the Effective Date, and shall automatically expire upon expiration of the last remaining service duration selected. Notwithstanding the foregoing, Customer shall not be entitled to Services under this Agreement for any Product for which the period of warranty or extended warranty has expired or is otherwise void.
7. TERMINATION. This Agreement may be terminated:
(a) by the non-defaulting party in the event of a default in the performance of any material provision of this Agreement (including the payment of fees), if the default is not cured within thirty (30) days of written notice of the non-breaching party’s intent to terminate;
(b) by Customer, with thirty (30) days written notice to Disgital, in the event there is an amendment or Service discontinuance by Disgital under Section 1(d) above which results in a material reduction of the Services hereunder, provided such notice of termination is given during the thirty (30) days following notice of such amendment or support discontinuance. In the event of termination pursuant to this Section 7(b), Customer may receive a pro-rata refund of the purchase price hereunder. In no event shall the amount of any refund be greater than the fees paid for the Services hereunder over a one (1) year period. Disgital records and data shall be the basis for all calculations and determinations hereunder.
(c) By either party if the other party (i) makes a general assignment for the benefit of creditors, (ii) is adjudicated bankrupt, (iii) files a voluntary petition for bankruptcy or reorganization, or has a petition filed against it for an adjudication in bankruptcy or reorganization and such petition is not dismissed within sixty (60) days, or (iv) applies for or permits the appointment of a receiver, trustee or custodian for any of its property or assets, the other party may terminate this Agreement immediately upon notice.
8. EFFECT OF TERMINATION. Upon termination or expiration of this Agreement for any reason, the rights and obligations of the parties hereunder will cease, except that the limitations of liability and any payment obligations hereunder will survive.
9. WARRANTY. Disgital agrees to perform the selected Services in a workmanlike manner. In the case of Technical Support Services, Disgital does not warrant or guarantee that a problem will be solved or that any item will be error- free. This Agreement and the Services are only applicable to Product(s) under original or extended warranty, which are running under the certified environments specified in the release notes for that Product. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR PROMISES TO CUSTOMER OR ANY THIRD PARTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING BY STATUE, LAW, COURSE OF DEALING, CUSTOM AND PRACTICE OR TRADE USAGE. EXCEPT AS PROVIDED ABOVE, THE SERVICES ARE PROVIDED “AS IS.”
10. LIMITATIONS OF LIABILITY. Disgital shall not be liable for incidental, special or consequential damages for any reason (including loss of data or other business or property damage), even if foreseeable or if Customer has advised of such a claim. Disgital’ liability hereunder shall not exceed the fees that Customer has paid under this Agreement. Customer agrees that the pricing for the Services would be substantially higher but for these limitations.
(a) Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes any prior or contemporaneous oral or written agreements or communications between them relating to the subject matter contained herein. Further, any purchase order that purports to amend or modify the terms or conditions of this Agreement will be of no force or effect. The Products and the use thereof are subject to the purchase and/or license agreement related to such Product.
(b) Modifications. Subject to Section 1 above, this Agreement may not be modified or altered except by written instrument duly executed by both parties.
(c) Choice of Law and Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois applicable to contracts wholly executed and wholly to be performed in Illinois without regard to conflict of laws provisions. Both parties consent to the exclusive venue and personal jurisdiction of the state and federal courts located in Illinois for any lawsuit arising from or relating to this Agreement. The prevailing party in any action related to this Agreement shall have the right to recover its reasonable expenses including attorneys’ fees.
(d) Assignment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld; provided, however that Disgital shall have the right to assign this Agreement without the other party’s consent to: (i) a parent corporation or entity; (ii) any subsidiary corporation or entity; or (iii) in connection with the sale of all or substantially all of its assets. Any attempted assignment in violation of this Section will be null and void.
(e) Confidential Information. Neither party will disclose its confidential information to the other, except under a specific non- disclosure agreement.
(f) Notices. Except as otherwise provided under this Agreement, all notices must be in writing, reference this Agreement and will be deemed given: (i) when delivered personally; (ii) when sent by confirmed facsimile; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipts.
(g) No Waiver. The waiver of a breach or failure to enforce any obligation herein will in no way be construed as a waiver of any other breach or obligation herein.
(h) Severability. The invalidity or unenforceability of any provision of this Agreement, or any of its terms or provisions, will not affect the validity of this Agreement at a whole, which will at all times remain in full force and effect.
(i) Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will constitute the same instrument.
(j) Force Majeure. Except for payment obligation, neither party shall be liable for the performance of its obligations under this Agreement if it becomes commercially impracticable to perform due to any contingency beyond the reasonable control of that party, including as a result of disruptions of transportation facilities, inability to obtain supplies or materials, failures or breaches by suppliers, acts of government, strikes, labor disputes, power or telecommunications disruptions, judicial action, or any other act of God (“Force Majeure”) and the obligation of a party to perform hereunder shall be suspended during the occurrence of a Force Majeure.
(k) Relationship of Parties. This Agreement is not intended as a consulting agreement between the parties.
The following additional terms and conditions apply when purchasing the Optional Extended Warranty:
1. Description. Disgital shall extend the standard warranty applicable to the specific product purchased for the duration of time selected as set forth on the applicable purchase order.
2. Valid Warranty. Customer understands that the Extended Warranty may be purchased for those products whose warranty coverage is still in effect.
3. Conditions of Service. Use of the Extended Warranty Services is subject to this Agreement, as may be amended from time to time.
4. Warranty Policy:
(a) Disgital warrants the hardware product covered by the Extended Warranty to be free from defects in material and workmanship for the Extended Warranty Period. During this period, if a customer is unable to resolve a product problem with Disgital Technical Support, a Return Material Authorization (RMA) will be issued. Following receipt of a RMA number, the customer shall return the product to Disgital, freight prepaid. Upon verification of warranty, Disgital will—at its option— repair or replace the product and return it to the customer freight prepaid.
(b) No services are handled at the customer’s site under this warranty. This warranty is void if the customer uses the product in an unauthorized or improper way, or in an environment for which it was not designed.
(c) Liability during the Extended Warranty Period shall be limited to (at Disgital’ election):
i. Refund of the purchase price for such product covered by the Extended Warranty; or
ii. Repair or replacement of the product covered by the Extended Warranty under the RMA process outlined above.