Opticon Total Care Terms and Conditions
Opticon Total Care Maintenance Services
Terms and Conditions
The following terms and conditions apply to Opticon Total Care Services (“Services”) provided to Customer by Ryzex. Ryzex’s acceptance of Customer’s purchase order for Services is acknowledged via a separate Service Level Agreement (“SLA”) that identifies, among other things, the Equipment, maintenance charges, term of agreement, and billing cycle. “Equipment” refers to hardware products which are eligible for Opticon Total Care Service and that are listed by serial number in the SLA unless specifically stated otherwise.
1) Extent of Service. In consideration of Customer paying the maintenance and support charges as listed in the SLA, Ryzex will provide depot repair service to restore to working order all items of Equipment, subject to the conditions and exclusions below. Ryzex will not be obliged to repair any such item if it malfunctions as a result of:
a) chronic negligence or deliberate abuse;
b) application software failure;
c) a modification of such item by a person other than its manufacturer or Ryzex; or
d) damage due to inadequate Customer-provided transit packaging,
2) Charges. Maintenance and support charges identified in the SLA will be invoiced to Customer at the beginning of the term, and at intervals (monthly or annually) as described in the SLA. All charges quoted under this agreement are exclusive of any federal, state, provincial, value added or local taxes (including without limitation any sales or use taxes), and do not cover the cost of consumables. Customer agrees to remit payment of all invoices within thirty (30) days of receipt. Failure to do so shall result in interest of 1.5% per month and may result in a disruption of repair service.
3) Method of Shipment. Customer will dispatch all items of Equipment to be serviced or repaired hereunder to Ryzex freight prepaid, and Ryzex will deliver such items to the carrier, freight prepaid per selected SLA, within the repair time identified in the SLA. If Customer requests that the Equipment be returned to it by a faster method, Customer will bear the cost of such return. Customer will bear the risk of any loss of, or damage to, Equipment in transit.
4) Term and Termination. The term of this service program is identified in the SLA. If either party wishes to renew this agreement, they will give the other party at least thirty (30) days prior written notice of their desire to renew, and the parties will negotiate in good faith renewal terms, provided, however, neither party is obligated to renew. Ryzex may withdraw Equipment from this service program upon fifteen (15) days written notice to Customer due to (a) Ryzex’s inability to support products after their End of Service date, (b) discontinuance of the Opticon Total Care program, or, (c) Customer’s returns for repair with damage beyond normal wear and tear exceeding 5% of Customer’s total base of like products covered by an Opticon Total Care option.
Either party may terminate this Agreement if the other party fails to cure its material default or breach of this Agreement within thirty (30) days after its receipt of written notice from the other party of its default or breach. Ryzex may terminate this Agreement immediately in the event of bankruptcy, insolvency or dissolution of Customer. If Ryzex terminates a Total Care option pursuant to this provision, Customer shall be entitled to a pro rata return of any maintenance charges paid but not earned prior to the effective date of the withdrawal. Any obligations that by their nature continue after the termination of this agreement will (no matter how that termination is effected) remain binding upon the parties.
5) Equipment Status. If any items of Equipment are lost, stolen, or destroyed, Customer may notify Ryzex in writing of all serial numbers of such items and the Charges will, starting in the billing period immediately succeeding the receipt of such notification, be reduced by the amount of the billing cycle service charge payable in respect of such items.
6) Labor and Parts. Ryzex will provide all the labor and parts necessary to perform the repair obligation undertaken herein. Customer is advised and understands that any parts used to repair the Equipment may have been altered, refurbished, and/or upgraded by Ryzex using parts from sources other than the original manufacturer. Some or all of the parts may have been in prior use. This Service program does not cover main batteries, cables, power supplies, print heads or other consumable and accessories unless itemized in the SLA.
7) LIMITATION OF LIABIILITY. UNDER NO CIRCUMSTANCES WILL RYZEX BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER KIND OF CIVIL LIABILITY CONNECTED WITH THIS AGREEMENT. RYZEX’S LIABILITY TO CUSTOMER UNDER THIS AGREEMENT IS LIMITED TO REPAYMENT OF THE MAINTENANCE FEE CHARGED FOR THE ITEM OF EQUIPMENT IN RESPECT OF WHICH RYZEX IS IN BREACH OF ITS OBLIGATIONS HEREUNDER.
8) Warranties. Ryzex makes no warranty with respect to any uses by any party that may require governmental or private licenses, such as certain uses of radio communications devices, software, or firmware that may be in the Equipment, or the right to use the Equipment for a particular purpose.
Customer specifically warrants that it has the right to use the Equipment for the purpose intended and that the Customer has all the rights required to lawfully authorize Ryzex to install and/or copy into the Equipment any component(s) and/or software which Customer has supplied to Ryzex for the purpose of such installation or copying, or which Customer has requested Ryzex to obtain or electronically encode for the purpose of such installation or copying. Customer undertakes to indemnify Ryzex against any claims, demands, actions and expenses (including attorneys' fees and cost of defense) alleging that Ryzex has infringed a patent, trademark, copyright or trade secret right of a third party by installing or copying such software onto the Equipment.
9) Force Majure. Ryzex will not be responsible for any delay in delivery, or failure to deliver any Equipment if such delay or failure results from causes beyond the control of Ryzex, including but not limited to, acts of God, labor disputes, delay or failure of suppliers or of transportation, or government acts.
10) Entire Agreement. This agreement constitutes the entire agreement of the parties to it. It supersedes all prior proposals, discussions, correspondence or communication. It may only be modified by a subsequent agreement in writing signed by both parties.
11) Jurisdiction. The laws of the State of Washington will govern this agreement and courts of that State will have jurisdiction to determine all questions relating to this Agreement.