EXTENDED WARRANTY SERVICES (OUTSIDE USA) TERMS AND CONDITIONS FOR EVOLT™

TERMS AND CONDITIONS FOR EVOLT™ EXTENDED WARRANTY SERVICES

These Terms and Conditions govern the provision of extended warranty services (the “Agreement”) between Evolt IOH Pty Ltd, a Queensland company, with its principal place of business at 1/24 Leda Drive, Burleigh Heads QUEENSLAND 4220 (“EVOLT”) and the original end user customer (the “Customer”) who purchased an EVOLT product eligible for extended warranty and who also purchased extended warranty from EVOLT as provided herein.  In consideration of the payment of the applicable fee paid by Customer to obtain the benefits of extended warranty, EVOLT shall provide the services described in this Agreement (“Services”) to the Customer for the period stated in the purchase order form issued and signed by EVOLT and Customer (including by means of any electronic purchase orders completed online) and on the terms and conditions set forth below. The date of the purchase order shall be the “Effective Date” of the Agreement.

PLEASE READ – IMPORTANT:

(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 THESE SERVICES FROM EVOLT CONSTITUTES CUSTOMER’S AGREEMENT TO AND ACCEPTANCE OF THIS AGREEMENT.

(b) CUSTOMER SHALL NOT BE ELIGIBLE FOR THE SERVICES UNTIL THE PRODUCT IS REGISTERED WITH EVOLT ONLINE AT WWW.EVOLT360.com.

REGISTRATION MUST BE COMPLETED WITHIN THIRTY (30) DAYS OF PURCHASE OF THE SERVICES.

(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) EVOLT 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.evolt360.com, and (ii) discontinue Products or versions and accordingly stop supporting Products or versions [one (1) year] after discontinuance, or otherwise discontinue any Service at any time.  Section 1.4 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 making this purchase, Customer agrees it received, read, understood and accepts the applicable terms and conditions set forth in this Agreement.

(f) Customer agrees and understands that this Agreement is not a contract of insurance.  EVOLT is legally and financially obligated to provide the Services described in this Agreement on the terms and conditions hereof.

(g) THIS AGREEMENT DOES NOT REPLACE THE MANUFACTURER’S LIMITED WARRANTY PURSUANT TO EVOLT’S SALE TERMS AND CONDITIONS; THIS AGREEMENT EXTENDS SUCH MANUFACTURER’S WARRANTY AND PROVIDES CERTAIN ADDITIONAL BENEFITS BEYOND THE TERM OF THE ORIGINAL MANUFACTURER’S WARRANTY.

(h) SERVICES UNDER THIS AGREEMENT ARE PROVIDED TO EVOLT’S CUSTOMERS RESIDENT OUTSIDE OF THE UNITED STATES ONLY.

 

  1. SCOPE OF SERVICES

1.1 Covered Product: This Agreement applies to the specific EVOLT product eligible for this Agreement as may be shown on EVOLT’s website and for which Customer has paid EVOLT applicable fee to extend the original limited warranty (the “Product”).

1.2 Term; Commencement of Services: This Agreement shall start on the Effective Date, and shall automatically expire upon expiration of the last remaining service duration selected in the applicable purchase order (the “Term”).  Notwithstanding the foregoing, Customer shall not be entitled to Services under this Agreement for any Product for which the period of extended warranty has expired or is otherwise void.  Services will commence on the day EVOLT’s original limited warranty for Customer’s Product expires. The original warranty period associated with the Product is described in the EVOLT Sale Terms and Conditions. Purchase of additional EVOLT products does not extend the original warranty period or the Term.

1.3 Termination and Cancellation: Customer may terminate this Agreement by notifying EVOLT in writing to info@evolt360.com within 30 days of purchase of the extended warranty to receive a full refund; less any amounts paid, or the cost of repairs made on Customer’s behalf. This 30-day period constitutes a “free look” period. After 30 days, Customer may terminate the Agreement by submitting a cancellation in writing to the above address. EVOLT will provide a pro rata refund based on the time expired less any amounts paid or the cost of repairs made on your behalf. EVOLT may terminate at any time after the Effective Date if Customer fails to perform or observe any condition of this Agreement. Notice of EVOLT’s cancellation will be in writing and given at least thirty (30) days prior to cancellation and contain the reason for cancellation. If EVOLT cancels, Customer will receive a pro rata refund based on the time expired under the Agreement. Full refunds for prepaid Services are available from the place of purchase only if Customer cancels within thirty days of the Effective Date and no payments have been made to Customer or amounts incurred on Customer’s behalf by EVOLT under this Agreement.

1.4 Continuation: At the conclusion of the Term, EVOLT may send an invoice to the Customer to continue to offer the Agreement services at a price to be determined at that time. In the event the Customer remits payment under that invoice, the Services will continue on the same terms and conditions as this Agreement.

1.5 Audit.  EVOLT 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.

 

  1. SERVICES

 

2.1 Scope of Services: During the Term, EVOLT will repair or replace the Product in the event there is a defect in materials and/or workmanship, as described more fully below. If a defect exists, EVOLT will, at its sole discretion and option, either: (a) repair the Product at no charge, using new or refurbished replacement parts; or (b) exchange the Product with a product that is new or which has been manufactured from new or serviceable used parts and is at least functionally equivalent to the original Product. The replacement product/part shall be warranted under the terms of this Agreement for the remainder of the Term. When a Product or part of such Product is exchanged, any replacement item becomes the Customer’s property and the replaced item becomes EVOLT’s property. Free of charge repair will be limited to maximum of [two times annually].  Services may be provided by telephone and/or email/SMS, at Customer’s locations or at EVOLT’s designated service facility at EVOLT’s sole and absolute discretion.

2.2 Obtaining Service: To obtain service under this Agreement, Customer must contact the EVOLT technical support team by either calling (07) 5535 6227 or submitting a “service ticket” online at http://www.evolt360.com. The EVOLT technical support team will determine, in its sole discretion, whether the Product qualifies for Services hereunder and, if so, how to provide the requested Service.

2.3 Service Availability: Technical support is available by toll-free phone [Monday through Friday from 9:00 a.m. to 5:00 p.m. Eastern Standard Time], or at another time as indicated by EVOLT.

2.4 Providing Service: If EVOLT’s technical support team determines that the Customer has a valid warranty claim hereunder, the technical support team will determine, in its sole discretion, whether to repair or replace the Product. The technical support team will also determine, in its sole discretion, whether to provide warranty service: (a) on site (by a certified technician); (b) remotely, through communication with the Customer; and/or (c) through shipment of the Product to EVOLT facilities.

2.5 Sending Product to EVOLT for Service: Once coverage of a Product is confirmed by EVOLT, and the technical support team determines that the Product should be shipped to EVOLT facilities for service, the technical support team will provide Customer with an Return Product Authorization (RPA) number and shipping instructions. At the time of providing the RPA number, the Customer must supply the Customer’s name, ship-from address, phone number, email address, a description of the problem and complete identification of the product being returned (including serial number, service number and/or other service tag). When shipping the Product to EVOLT, Customer must follow all EVOLT instructions, including the time frame required to return the Product. When shipping the Product to EVOLT, the Customer must also package the product in the original packing material. If the original packaging is not available, the Customer must contact the EVOLT technical support team for additional shipping instructions. EVOLT will not be responsible for any loss or damages resulting from shipping a product for warranty service; therefore, the Customer should insure each shipment. EVOLT will pay freight charges to and from EVOLT facilities for the products returned for warranty service from a U.S. address, shipping standard ground carrier or another method determined by EVOLT. In the event repairs are found not to be covered by the Agreement, EVOLT will inform the Customer of all non-covered labor and parts charges. Thereafter, the Customer will be responsible for paying all freight charges in addition to such non-covered labor and parts charges.

2.6 EVOLT’S Warranty:  EVOLT agrees to perform the Services in a workmanlike manner.  In the case of any Services provided by phone, email or other electronic communications, Evolt does not warrant or guarantee that a problem will be solved or that any item will be error-free.  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.”

 

  1. CUSTOMER’S RESPONSIBILITIES

3.1 Care of Product: The Customer shall be responsible for the use, care and general maintenance of the Product in accordance with EVOLT’s instruction manual, documentation or other instructions, normal practice and ordinary usage. This includes, but is not limited to, providing and maintaining a stable environment with properly conditioned electrical power, grounding, air conditioning and humidity control.

3.2 Access to Product: In the event EVOLT requires on-site or other direct access to the Product, the Customer shall provide technicians access on the scheduled dates, at the scheduled times and in the requested manner.

3.3 Cooperation: Customer agrees to make all reasonable efforts to support and cooperate with EVOLT in resolving the problem requiring support remotely, for example, starting and executing self-tests or diagnostic programs, providing all necessary information, or performing basic remedial activities upon EVOLT’s request.  Customer must ensure that an adult representative 18 years or older is present when EVOLT is providing Services at Customer’s designated location or by telephone.  If remote Services are available, Customer will allow EVOLT to keep system and network diagnostic programs resident on the Product and provide EVOLT login access for the exclusive purpose of performing diagnostics. Customer acknowledges that he or she has no ownership interest in any diagnostic software provided or utilized by EVOLT and that EVOLT will remove these diagnostic programs and any Evolt loaned equipment upon termination or expiration of this Agreement. When capable, the Product must be configured to permit access to one voice-grade telephone line and one data-quality telephone line; both must have terminations located near the Product. Upon EVOLT’s request, Customer will run diagnostic programs EVOLT has supplied before having a Product serviced under this Agreement.

3.4 Data Security: Customer is solely responsible for the security of his or her proprietary and confidential information and for maintaining a procedure external to EVOLT for reconstruction of lost, or altered files, data, or programs. EVOLT does not intend to have access to Customer’s personally identifiable information, including protected health information, (collectively “PII & PHI”) in providing Services. To the extent EVOLT has access to Customer’s PII or PHI stored on Customer’s system or device, such access will be incidental and transient and Customer will remain the data controller of his or her PII & PHI at all times. Customer is solely responsible for removing all PII and PHI from any Product before returning to EVOLT for any Service hereunder.

3.5 Additional Devices: The Customer agrees not to employ or install unauthorized attachments, features or devices to the Product, make alterations to the Product, or permit personnel other than EVOLT personnel (or EVOLT authorized dealers or contractors) to repair or service the Product, without the written consent of EVOLT.

  1. EXCLUSIONS FROM SERVICE

4.1 The Agreement does not apply to and does not cover any loss, problem or damage to the Product due to, or repairs required by:

(i) Customer neglect, negligence, misuse, abuse, misapplication or any external fire, theft, vandalism, terrorism, flood, exposure to weather conditions, power surges, disruptions or losses of power, brownouts, accidental damage, ordinary wear and tear, improper transportation or packaging in shipment of the Product, damage to the Product while in transit or following arrival, Product’s handle breakage, or acts of God, including, without limitation, lightning and earthquakes;

(ii) Customer’s failure to perform preventative maintenance or provide and maintain a stable installation environment with all facilities prescribed by EVOLT, including, but not limited to, properly conditioned electrical power, grounding provided via a suitable UL listed uninterruptible power supply properly matched to the power requirements of the equipment, air conditioning and/or humidity control, or Customer’s failure to use reasonable means to protect the Product from further damage after a failure occurs;

(iii) any third party hardware or software parts, components or accessories used in connection with Product, including, without limitation, any keyboards, mouse, speakers, modems, wiring or any unauthorized attachments, features or devices;

(iv) use of materials not meeting EVOLT’s specifications, or use of Product not in accordance with Product instructions or for purposes other than those for which they were designed or any relocation, reconfiguration or unauthorized additions or other transportation damage;

(v) a change required by the laws or regulations of any governmental body or agency;

(vi) any and all pre-existing conditions that occur prior to the effective date of this Agreement (unless otherwise agreed in writing); and

(vii) any non-authorized service, which includes any instance in which a person, other than an authorized EVOLT technician, performs maintenance or repairs to the Product, or makes any alterations or modifications to the Product, or uses supplies, parts, components or accessories other than those recommended by EVOLT.

The Services do not include: (a) support of any non-Evolt hardware or software; [(b) on-site support]; (c) non-Evolt application installation or trouble shooting; (d) non-Evolt operating system installation or trouble shooting; (e) networking configuration or (f) [shipping and insurance cost of sending a Product for warranty service to or from EVOLT].

4.2 Additional Services: If Customer requests a Service outside the scope of the extended warranty purchased by Customer under this Agreement, such repair will be furnished at EVOLT’s then-current rates for labor and materials.

4.3 Software Excluded: This Agreement does not extend to or apply to software, including without limitation the software as a service provided under the Software Subscription Agreement with Evolt IOH Pty Ltd.

4.4 Fees: Fees for the Services are outlined in the applicable EVOLT Agreements, subject to written acceptance by EVOLT.  Fees shall be due as outlined in the applicable EVOLT Agreements.  Any late payments shall bear a late payment fee of the higher of 1.5% per month or the maximum rate allowed by law.

4.5 Paid in Full: This Agreement only covers Product that has been paid for in full. Therefore, EVOLT reserves the right to refuse to provide Agreement services for any Product for which the Customer has not paid in full.

 

  1. LIMITATIONS OF LIABILITY

5.1 NEITHER EVOLT NOR ANY OF ITS AFFILIATES, SUBSIDIARIES, DIVISIONS, SUCCESSORS, ASSIGNS, SUPPLIERS AND MANUFACTURERS SHALL BE LIABLE, REGARDLESS OF CIRCUMSTANCES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES OF ANY NATURE OR KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES ARISING OUT OF OR RESULTING FROM USE OR FAILURE OF THE PRODUCT, FAILURE TO REALIZE SAVINGS, PROPERTY DAMAGE, INTERRUPTIONS IN CUSTOMER’S USE OF THE PRODUCT, OR DEMAND AGAINST THE CUSTOMER BY ANY THIRD PARTY, WHETHER OR NOT EVOLT HAS RECEIVED NOTICE OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES, DIRECTLY OR INDIRECTLY ARISING FROM THIS EXTENDED WARRANTY, INCLUDING, WITHOUT LIMITATION, CUSTOMER’S INABILITY TO USE THE PRODUCT, EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER PRODUCT OR SOFTWARE. SOME STATES DO NOT ALLOW A LIMITATION OR THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR CONSUMER PRODUCTS OR OF A CONSUMER’S STATUTORY RIGHTS. IN SUCH STATES SOME EXCLUSIONS OR LIMITATIONS OF THIS LIMITED WARRANTY MAY NOT APPLY TO YOU.

5.2 THE TOTAL AMOUNT THAT EVOLT WILL PAY FOR REPAIRS OR REPLACEMENT MADE IN CONNECTION WITH ALL CLAIMS ON ANY COVERED PRODUCT SHALL NOT EXCEED THE PURCHASE PRICE OF THE COVERED PRODUCT EXCLUDING TAX AND SHIPPING. IN THE EVENT THAT EVOLT OR EVOLT SERVICE PROVIDERS MAKE REPAIRS, WHICH IN THE AGGREGATE ARE EQUAL TO THE PURCHASE PRICE OF THE COVERED PRODUCT, OR REPLACE THE COVERED PRODUCT WITH A NEW, REBUILT, OR REFURBISHED PRODUCT OF EQUAL OR SIMILAR FEATURES AND FUNCTIONALITY, EVOLT WILL HAVE NO FURTHER OBLIGATIONS UNDER THIS AGREEMENT. THE COST OF REPAIR FOR ANY ADDITIONAL CLAIMS WILL BE CHARGED ON A TIME-AND-MATERIALS BASIS.

5.3 FOR ANY BREACH OF THIS AGREEMENT BY EVOLT, CUSTOMER’S REMEDY AND EVOLT’S LIABILITY WILL BE LIMITED TO A REFUND OF THE PRICE PAID FOR THIS AGREEMENT BY CUSTOMER FOR THE PRODUCT AT ISSUE. EVOLT WILL NOT BE LIABLE FOR PERFORMANCE DELAYS OR FOR NONPERFORMANCE DUE TO CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING WHEN PRODUCT OR PARTS ARE NOT AVAILABLE. TO THE EXTENT EVOLT IS HELD LEGALLY LIABLE TO CUSTOMER, EVOLT’S LIABILITY IS LIMITED TO DAMAGES FOR BODILY INJURY AND DAMAGES TO TANGIBLE PROPERTY UP TO THE LIMIT OF [US$100,000] AND FOR OTHER DIRECT DAMAGES FOR ANY CLAIM BASED ON A MATERIAL BREACH OF SERVICES, UP TO A MAXIMUM OF THE EXTENDED WARRANTY FEES CUSTOMER PAID FOR THIS AGREEMENT FOR THE PRODUCTS AT ISSUE. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES. EXCEPT AS INDICATED ABOVE.

5.4 All implied warranties with respect to the Product, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, are hereby expressly excluded. Under this Agreement, EVOLT does not guarantee or warrant that: (a) the Product will meet Customer’s requirements or that the operation of the Product will be uninterrupted or error-free; or that (b) the Product will be compatible with any other content, product or systems. The Customer assumes responsibility for the selection of the Product to achieve the Customer’s intended results, and for the use and results obtained from the Product. Should the Product prove to be defective in any respect other than as encompassed by the foregoing, the Customer assumes the entire cost of all necessary servicing, repair or correction.

5.5 Recovery and reinstallation of user data is not covered under this Agreement; therefore, Customers are solely responsible for backing up data on the hard drive(s) and on any other storage device(s) in or associated with the Product before obtaining Agreement service. Customers should remove or delete any information they deem personal, confidential or proprietary prior to obtaining service.

5.6 Customer agrees that the pricing for the Services would be substantially higher but for these limitations.

 

  1. GENERAL

6.1 Entire Agreement: This Agreement constitutes the entire agreement and understanding between Customer and EVOLT pertaining to the provision of Services under the EVOLT extended warranty. This Agreement supersedes all prior or collateral oral or written representations, discussions, communications, advertising or agreements related thereto, and EVOLT is not bound by any representation or inducement not specifically set forth herein.

6.2 Modification: This Agreement may not be modified or amended, except in writing signed by an authorized representative of EVOLT. No other EVOLT employee is authorized to modify this Agreement or to make any representations or agreements, written or oral, concerning this subject matter herein, and no such modification, representation or agreement shall be binding upon EVOLT.

6.3 Severability: Each and every provision of this Agreement is severable. If a court of competent jurisdiction declares any provision hereof to be void or unenforceable, then the same shall be struck from this Agreement without in any way affecting the validity of any other provision of this Agreement. This Agreement will be deemed amended to the extent necessary to make it enforceable and valid, and the remaining terms and provisions will remain in full force and effect.

6.4 Non-Transferable: This Agreement is non-transferable and may not be assigned by Customer without the prior written approval of EVOLT and any attempt to assign this Agreement without authorization shall be deemed null and void; provided, however that EVOLT shall have the right to assign this Agreement without Customer’s consent to: (i) a parent corporation or affiliated entity; (ii) any subsidiary corporation or entity; or (iii) in connection with the sale of all or substantially all of its assets.

6.5 Notices:  Any notices required to be given hereunder shall be given in writing and addressed as follows: if to Customer, to the address and individual of the customer on file; and if to EVOLT, to info@evolt360.com.

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.

6.6 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 or a forfeiture of any rights hereunder.

6.7 Governing Law; Binding Arbitration: This Agreement shall be enforced and interpreted subject to the laws of Queensland, Australia applicable to contracts wholly executed and wholly to be performed in Queensland, Australia without regard to any conflict of law principles.  EACH OF CUSTOMER AND EVOLT HEREBY AGREES TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM.  The prevailing party in any action related to this Agreement shall have the right to recover its reasonable expenses including attorneys’ fees.

6.8 Subcontracting: EVOLT reserves the right to subcontract any service or product to be provided under this Agreement.

6.9 Force Majeure: EVOLT shall not be liable for any failure in service as a result of EVOLT’s being delayed, prevented or hindered in the performance of its obligations under this Agreement (or its agents, employees or contractors) by reason of any circumstances beyond its reasonable control, including, without limitation, fire, flood, power surges, civil disorder, government actions, war, terrorism, import or export regulations or embargoes, labor disputes, strikes, supply disruptions and/or acts of God, including, without limitation, lightning and earthquakes.

EVOLT Extended Product Warranty Services

 

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